Covenants of the Company and the Guarantors. Each of the Company and the Guarantors jointly and severally agrees: (a) to (i) advise the Representative promptly after obtaining knowledge (and, if requested by the Representative, confirm such advice in writing) of (A) the issuance by any U.S. or non-U.S. Federal or state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Notes for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any U.S. or non-U.S. Federal or state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Time of Sale Document or the Final Offering Memorandum untrue or that requires the making of any additions to or changes in the Time of Sale Document or the Final Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any U.S. state securities or Blue Sky laws (or their equivalent in non-U.S. jurisdictions), and (iii) if, at any time, any U.S. or non-U.S. Federal or state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time; (b) to (i) furnish to the Initial Purchasers, without charge, as many copies of the Time of Sale Document and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request, and (ii) promptly prepare, upon the reasonable request of an Initial Purchaser, any amendment or supplement to the Time of Sale Document or Final Offering Memorandum that the Initial Purchasers, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Time of Sale Document and the Final Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales); (c) not to amend or supplement the Time of Sale Document or the Final Offering Memorandum prior to the Closing Date, or at any time prior to the completion of the resale by the Initial Purchasers of all the Notes purchased by the Initial Purchasers, unless the Initial Purchasers shall previously have been advised thereof and shall have provided its written consent thereto; (d) so long as the Initial Purchasers shall hold any of the Notes, (i) if any event shall occur as a result of which, in the reasonable judgment of the Company or the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Time of Sale Document or the Final Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Time of Sale Document or the Final Offering Memorandum to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Time of Sale Document and the Final Offering Memorandum (in form and substance reasonably satisfactory to the Initial Purchasers) so that (A) as so amended or supplemented, the Time of Sale Document and the Final Offering Memorandum will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Time of Sale Document and the Final Offering Memorandum will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or advisable to amend or supplement the Time of Sale Document or the Final Offering Memorandum so that the Time of Sale Document and the Final Offering Memorandum will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Securities Act, to prepare an appropriate amendment or supplement to the Time of Sale Document or the Final Offering Memorandum (in form and substance reasonably satisfactory to the Initial Purchasers) so that the Time of Sale Document or the Final Offering Memorandum, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule; (e) to cooperate with the Initial Purchasers and the Initial Purchasers’ counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales; (f) whether or not any of the Offering or the other Transactions are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing and distribution of the Time of Sale Document and the Final Offering Memorandum and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the negotiation, printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes, (D) the qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the fees and disbursements of the Initial Purchasers’ counsel relating to such registration or qualification) and (E) furnishing such copies of the Time of Sale Document and the Final Offering Memorandum, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for “book-entry” transfer, (iv) all fees charged by rating agencies in connection with the rating of the Notes, (v) all fees and expenses (including reasonable fees and expenses of counsel) of the Trustee and all collateral agents, (vi) all costs and expenses in connection with the creation and perfection of the security interest in the Collateral Agreements (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (vii) all fees, disbursements and out-of-pocket expenses incurred by the Initial Purchasers in connection with its services to be rendered hereunder including, without limitation, the fees and expenses and disbursements of ▇▇▇▇▇ Day, counsel to the Initial Purchasers, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures; (g) to use the proceeds of the Offering in the manner described in the Time of Sale Document and the Final Offering Memorandum under the caption “Use of Proceeds”; (h) to do and perform all things required to be done and performed under the Transaction Documents prior to and after the Closing Date, including furnishing post-closing opinions, substantially in the form of Exhibit C-1 and Exhibit C-2 attached hereto, that certify the validity of the security documents executed post-closing; (i) not to, and to ensure that no Affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Subsequent Purchasers of the Notes; (j) not to take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the Notes, whether to facilitate the sale or resale of the Notes or otherwise; (k) for so long as any of the Notes remain outstanding, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the information required by Rule 144A(d)(4) under the Securities Act; (l) to comply with the representation letter of the Company to DTC relating to the approval of the Notes by DTC for “book entry” transfer; (m) until the offering of Securities is complete, to file all documents required to be filed by it with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act; (n) for so long as any of the Notes remain outstanding, except for such documents that are publicly available on the SEC’s Electronic Data Gathering Analysis and Retrieval System, the Company will furnish to the Representative copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed; (o) not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Time of Sale Document and the Final Offering Memorandum and any amendments and supplements to the Final Offering Memorandum prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; (p) during the one-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Securities Act, as the same may be in effect from time to time), to not, and to not permit Parent, any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Securities Act) of the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, Parent, any current or future Subsidiaries or any other affiliates (as defined in Rule 144A under the Securities Act) controlled by the Company, except pursuant to an effective registration statement under the Securities Act; (q) the Company shall pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Notes or the sale thereof to the Initial Purchasers; and (r) to use their commercially reasonable efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfecting of security interests as and to the extent contemplated by the Collateral Agreements; provided that, the Company and the Guarantors agree to complete all such filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements that were not completed prior to the Closing Date, including perfecting the security interest and Mortgaged Vessels in connection with the delivery of the Topaz Driller within 15 days of delivery.
Appears in 1 contract
Covenants of the Company and the Guarantors. Each of the Company and the Guarantors jointly and severally agreesagrees with each of the Initial Purchasers that:
(a) At any time prior to the date of the completion of the resale of the Notes by the Initial Purchasers, to (i) advise the Representative Initial Purchasers as promptly as practicable after obtaining knowledge (and, if requested by the RepresentativeInitial Purchasers, confirm such advice in writing) of (A) the issuance by any U.S. or non-U.S. Federal or state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Notes for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any U.S. or non-U.S. Federal or state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Time of Sale Document Pricing Disclosure Package, any Company Additional Written Communication or the Final Offering Memorandum untrue or that requires the making of any additions to or changes in the Time of Sale Document Pricing Disclosure Package, any Company Additional Written Communication or the Final Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any U.S. state securities or Blue Sky laws (or their equivalent in non-U.S. jurisdictions)laws, and (iii) if, at any time, any U.S. or non-U.S. Federal or state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time;.
(b) to To (i) furnish to the Initial Purchasers, without charge, as many copies of the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum, and any amendments or supplements thereto, as the Initial Purchasers may reasonably request, and (ii) promptly prepare, upon the Initial Purchasers’ reasonable request of an Initial Purchaserrequest, any amendment or supplement to the Time of Sale Document or Final Offering Memorandum that the Initial Purchasers, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company and the Guarantors hereby consents consent to the use of the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum, and any amendments and supplements thereto, by the Initial Purchasers in connection with Exempt Resales);.
(c) not Not to amend or supplement the Time of Sale Document Pricing Disclosure Package or the Final Offering Memorandum prior to the Closing Date, or at any time prior to the completion of the resale by the Initial Purchasers of all the Notes purchased by the Initial Purchasers, unless the Initial Purchasers shall previously have been advised thereof and shall have provided its their written consent thereto;. Before making, preparing, using, authorizing, approving or referring to any Company Additional Written Communications, the Company will furnish to the Initial Purchasers and counsel for the Initial Purchasers a copy of such written communication for review and will not make, prepare, use, authorize, approve or refer to any such written communication to which the Initial Purchasers reasonably object.
(d) so So long as the Initial Purchasers shall hold any of the Notes, (i) if any event shall occur as a result of which, in the reasonable judgment of the Company or any of the Initial Purchasers, it becomes necessary or advisable to amend or supplement the Time of Sale Document Pricing Disclosure Package or the Final Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Time of Sale Document Pricing Disclosure Package or the Final Offering Memorandum to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum (in form and substance reasonably satisfactory to each of the Initial Purchasers) so that (A) as so amended or supplemented, the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or advisable to amend or supplement the Time of Sale Document Pricing Disclosure Package or the Final Offering Memorandum so that the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Securities Act, to prepare an appropriate amendment or supplement to the Time of Sale Document Pricing Disclosure Package or the Final Offering Memorandum (in form and substance reasonably satisfactory to each of the Initial Purchasers) so that the Time of Sale Document Pricing Disclosure Package or the Final Offering Memorandum, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule;rule.
(e) to To cooperate with the Initial Purchasers and the Initial Purchasers’ counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may request and continue such qualification in effect so long as reasonably required for Exempt Resales;.
(f) whether Whether or not any of the Offering or Transactions contemplated under the other Transactions Transaction Documents are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing and distribution of the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the negotiation, printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes, (D) the qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the fees and disbursements of the Initial Purchasers’ counsel relating to such registration or qualification) and ), (E) furnishing such copies of the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial Purchasers, and (F) the performance of the obligations of the Company and the Guarantors obligations under the Registration Rights Agreement, including but not limited to the Exchange Offer and any Shelf Registration Statement (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all fees and expenses (including fees and expenses of counsel) of the Company in connection with approval of the Notes by DTC for “book-entry” transfer, (iv) all fees charged by rating agencies in connection with the rating of the Notes, (v) all fees and expenses (including reasonable fees and expenses of counsel) of the Trustee and all collateral agents, (vi) all costs and expenses in connection with the creation and perfection of the security interest in interests under the Collateral Agreements Security Agreement (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (vii) all reasonable fees, disbursements and out-of-pocket expenses incurred by the Initial Purchasers in connection with its services to be rendered hereunder (including, without limitation, the fees and expenses and disbursements of ▇▇▇▇▇ Day, Proskauer Rose LLP as counsel to the Initial PurchasersPurchasers up to $250,000), travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses, costs and expenses relating to investor presentations on any “road show” undertaken in connection with marketing the Notes and other customary expenditures up to $350,000. If the sale of the Notes provided for herein is not consummated because any condition to the to the obligations of the Initial Purchasers set forth in Section 7 is not satisfied, because this Agreement is terminated pursuant to Section 9 or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on its part to be performed or satisfied hereunder (other than in each case solely by reason of a default by the Initial Purchasers on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company agrees to promptly reimburse the Initial Purchasers for all fees, disbursements and out-of-pocket expenses (including the fees and expenses of Proskauer Rose LLP as counsel for the Initial Purchasers up to $250,000), travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other reasonable and customary expenditures;) that shall have been incurred by the Initial Purchasers in connection with the proposed purchase and sale of the Notes.
(g) to To use the proceeds of the Offering in the manner described in the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum under the caption “Use of Proceeds.”;
(h) to To do and perform all things required to be done and performed under the Transaction Documents prior to and after the Closing Date, including furnishing post-closing opinions, substantially in the form of Exhibit C-1 and Exhibit C-2 attached hereto, that certify the validity of the security documents executed post-closing;.
(i) not Not to, and to ensure that no Affiliate affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers or to the Subsequent Purchasers of the Notes;.
(j) not to take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the Notes, whether to facilitate the sale or resale of the Notes or otherwise;
(k) for For so long as any of the Notes remain outstanding, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the information required by Rule 144A(d)(4) under the Securities Act;.
(lk) to To comply with the representation letter of the Company to DTC relating to the approval of the Notes by DTC for “book entry” transfer;.
(ml) until the offering of Securities is complete, to file all documents required to be filed by it with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act;
(n) for For so long as any of the Notes remain outstanding, except for such documents that are publicly available on the SEC’s Electronic Data Gathering Analysis and Retrieval System, the Company will to furnish to the Representative Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission SEC or any national securities exchange on which any class of securities of the Company may be listed;listed unless such reports or financial statements are filed with the SEC and are publicly available.
(om) not toExcept in connection with the Exchange Offer or the filing of the Shelf Registration Statement, to not, and to not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Time of Sale Document Pricing Disclosure Package and the Final Offering Memorandum and any amendments and supplements to the Final Offering Memorandum prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Securities Act) or in any manner involving a “public offering offering” within the meaning of Section 4(2) of the Securities Act;.
(pn) during During the one-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 under the Securities Act, as the same may be in effect from time to time), to not, and to not permit Parent, any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Securities Act) of controlled by the Company to, resell any of the Notes which constitute “restricted securities” under Rule 144 that have been reacquired by the Company, Parent, any current or future Subsidiaries or any other affiliates “affiliates” (as defined in Rule 144A under the Securities Act) controlled by the Company, except pursuant to an effective registration statement under the Securities Act;.
(qo) the Company shall To pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Notes or the sale thereof to the Initial Purchasers; and.
(rp) to To use their commercially reasonable its best efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfecting perfection of the security interests as and to the extent contemplated by the Collateral Agreements; provided that.
(q) To, the Company as promptly as practicable and the Guarantors agree to complete all such filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements that were not completed prior to no event later than 45 calendar days after the Closing Date, submit an application to the applicable Gaming Authorities (as defined below) requesting approval of the grant of a Lien in favor of the Collateral Agent in 100% of the Capital Stock (as defined in the Gaming Pledge Agreement) of ▇▇▇▇▇▇’▇ Gaming, Inc. to secure the Obligations pursuant to the terms of the Transaction Documents. The Company shall, as promptly as practicable and in no event later than 5 Business Days after receipt of the approval of the Gaming Authorities to the grant of a Lien in favor of the Collateral Agent in 100% of the Capital Stock of ▇▇▇▇▇▇’▇ Gaming, Inc. to secure the Obligations pursuant to the terms of the Transaction Documents, (i) execute and deliver to the Collateral Agent a written notification of such delivery to the collateral agent (the “First Lien Agent”) under the Credit Documents (as defined in the Gaming Pledge Agreement), together with copies of all stock certificates and stock powers so delivered and (ii) take all other steps necessary to perfect such Lien in favor of the Collateral Agent, including perfecting the security interest obtaining from First Lien Agent a written acknowledgment that such First Lien Agent holds such stock certificates and Mortgaged Vessels stock powers subject to and in connection accordance with the delivery terms of the Topaz Driller within 15 Transaction Documents. For purposes of this Agreement, “Gaming Authorities” means any agency, authority, board, bureau, commission, department, office or instrumentality of any nature whatsoever of the United States or foreign government (including Native American governments), any state, province, city, or other political subdivision thereof, whether now or hereafter existing, or any officer or official thereof, including, without limitation, any other agency with authority to regulate any gaming operation (or proposed gaming operation) owned, managed or operated by the Company or its Subsidiaries.
(r) To use commercially reasonable efforts to deliver to the Collateral Agent, as promptly as practicable and in no event later than 30 days after the Closing Date, control agreements with respect to certain Deposit Accounts (as defined below) of deliverythe Company to be determined by the Collateral Agent in accordance with the Transaction Documents. For purposes of this Agreement, “Deposit Account” means a deposit account as that term is defined in the Uniform Commercial Code in effect in the State of New York.
Appears in 1 contract
Covenants of the Company and the Guarantors. Each of the Company Co-Issuers and the Guarantors jointly and severally agrees:
(a) to (i) advise the Representative Initial Purchaser promptly after obtaining knowledge (and, if requested by the RepresentativeInitial Purchaser, confirm such advice in writing) of (A) the issuance by any U.S. or non-U.S. Federal or state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Notes for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any U.S. or non-U.S. Federal or state securities commission or other regulatory authority, or (B) the happening of any event that makes any statement of a material fact made in the Time of Sale Document or the Final Offering Memorandum Circular untrue or that requires the making of any additions to or changes in the Time of Sale Document or the Final Offering Memorandum Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any U.S. state securities or Blue Sky laws (or their equivalent in non-U.S. jurisdictions), and (iii) if, at any time, any U.S. or non-U.S. Federal or state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(b) to (i) furnish to the Initial PurchasersPurchaser, without charge, as many copies of the Time of Sale Document and the Final Offering MemorandumCircular, and any amendments or supplements thereto, as the Initial Purchasers Purchaser may reasonably request, and (ii) promptly prepare, upon the reasonable request of an Initial Purchaser’s reasonable request, any amendment or supplement to the Time of Sale Document or Final Offering Memorandum Circular that the Initial PurchasersPurchaser, upon advice of legal counsel, determines may be necessary in connection with Exempt Resales (and the Company hereby consents to the use of the Time of Sale Document and the Final Offering MemorandumCircular, and any amendments and supplements thereto, by the Initial Purchasers Purchaser in connection with Exempt Resales);
(c) not to amend or supplement the Time of Sale Document or the Final Offering Memorandum Circular prior to the Closing Date, or at any time prior to the completion of the resale by the Initial Purchasers Purchaser of all the Notes purchased by the Initial PurchasersPurchaser, unless the Initial Purchasers Purchaser shall previously have been advised thereof and shall have provided its written consent thereto;
(d) so long as the Initial Purchasers Purchaser shall hold any of the Notes, (i) if any event shall occur as a result of which, in the reasonable judgment of the Company or the Initial PurchasersPurchaser, it becomes necessary or advisable to amend or supplement the Time of Sale Document or the Final Offering Memorandum Circular in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Time of Sale Document or the Final Offering Memorandum Circular to comply with Applicable Law, to prepare, at the expense of the Company, an appropriate amendment or supplement to the Time of Sale Document and the Final Offering Memorandum Circular (in form and substance reasonably satisfactory to the Initial PurchasersPurchaser) so that (A) as so amended or supplemented, the Time of Sale Document and the Final Offering Memorandum Circular will not include an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) the Time of Sale Document and the Final Offering Memorandum Circular will comply with Applicable Law and (ii) if in the reasonable judgment of the Company it becomes necessary or advisable to amend or supplement the Time of Sale Document or the Final Offering Memorandum Circular so that the Time of Sale Document and the Final Offering Memorandum Circular will contain all of the information specified in, and meet the requirements of, Rule 144A(d)(4) of the Securities Act, to prepare an appropriate amendment or supplement to the Time of Sale Document or the Final Offering Memorandum Circular (in form and substance reasonably satisfactory to the Initial PurchasersPurchaser) so that the Time of Sale Document or the Final Offering MemorandumCircular, as so amended or supplemented, will contain the information specified in, and meet the requirements of, such Rule;
(e) to cooperate with the Initial Purchasers Purchaser and the Initial Purchasers’ Purchaser’s counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may request and continue such qualification in effect so long as reasonably required for Exempt Resales;
(f) whether or not any of the Offering or the other Transactions are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing and distribution of the Time of Sale Document and the Final Offering Memorandum Circular and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the negotiation, printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Transaction Documents, (C) the preparation, issuance and delivery of the Notes, (D) the qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the fees and disbursements of the Initial Purchasers’ Purchaser’s counsel relating to such registration or qualification) and ), (E) furnishing such copies of the Time of Sale Document and the Final Offering MemorandumCircular, and all amendments and supplements thereto, as may reasonably be requested for use by the Initial PurchasersPurchaser and (F) the performance of the obligations of the Co-Issuers and the Guarantors under the Registration Rights Agreement, including but not limited to the Exchange Offer, the Exchange Offer Registration Statement and any Shelf Registration Statement, (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Company, (iii) all expenses and listing fees in connection with the application for quotation of the Notes on the Private Offerings, Resales and Trading Automated Linkages market (“PORTAL”), (iv) all fees and expenses (including fees and expenses of counsel) of the Company Co-Issuers in connection with approval of the Notes by DTC for “book-entry” transfer, (ivv) all fees charged by rating agencies in connection with the rating of the Notes, (vvi) all fees and expenses (including reasonable fees and expenses of counsel) of the Trustee and all collateral agents, (vivii) all costs and expenses in connection with the creation and perfection of the security interest in the Collateral Agreements (including without limitation, filing and recording fees, search fees, taxes and costs of title policies) and (viiviii) all fees, disbursements and out-of-pocket expenses incurred by the Initial Purchasers Purchaser in connection with its services to be rendered hereunder including, without limitation, the fees and disbursements and expenses and disbursements of ▇▇▇▇▇ Day, counsel to the Initial PurchasersPurchaser, travel and lodging expenses, word processing charges, messenger and duplicating services, facsimile expenses and other customary expenditures;
(g) to use the proceeds of the Offering in the manner described in the Time of Sale Document and the Final Offering Memorandum Circular under the caption “Use of Proceeds”” and not to invest, or otherwise use the proceeds received by the Co-Issuers from their sale of the Notes in such a manner as would require any of the Co-Issuers or Guarantors to register as an investment company under the Investment Company Act;
(h) to do and perform all things required to be done and performed under the Transaction Documents prior to and after the Closing Date, including furnishing post-closing opinions, substantially in the form of Exhibit C-1 and Exhibit C-2 attached hereto, that certify the validity of the security documents executed post-closing;
(i) not to, and to ensure that no Affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Initial Purchasers Purchaser or to the Subsequent Purchasers of the Notes;
(j) not to take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of the NotesNotes or any other reference security, whether to facilitate the sale or resale of the Notes or otherwise;
(k) for so long as any of the Notes remain outstanding, during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request, to any owner of the Notes in connection with any sale thereof and any prospective Subsequent Purchasers of such Notes from such owner, the information required by Rule 144A(d)(4) under the Securities Act;
(l) to comply with the representation letter of the Company Co-Issuers to DTC relating to the approval of the Notes by DTC for “book entry” transfer;
(m) until to use its best efforts to effect the offering inclusion of Securities is complete, to file all documents required to be filed by it with the Commission pursuant to the Exchange Act within the time periods required by the Exchange ActNotes in PORTAL;
(n) for so long as any of the Notes remain outstanding, except for such documents that are publicly available on the SECCommission’s Electronic Data Gathering Gathering, Analysis and Retrieval System, the Company Co-Issuers will furnish to the Representative Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company Co-Issuers to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company Co-Issuers with the Commission or any national securities exchange on which any class of securities of the Company any Co-Issuer may be listed;
(o) except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, not to, and not to authorize or permit any person acting on its behalf to, (i) distribute any offering material in connection with the offer and sale of the Notes other than the Time of Sale Document and the Final Offering Memorandum Circular and any amendments and supplements to the Final Offering Memorandum Circular prepared in compliance with this Agreement, or (ii) solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (including, without limitation, as such terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act;
(p) during the onetwo-year period after the Closing Date (or such shorter period as may be provided for in Rule 144 144(k) under the Securities Act, as the same may be in effect from time to time), to not, and to not permit Parent, any current or future Subsidiaries of either the Company or any other affiliates (as defined in Rule 144A under the Securities Act) of controlled by the Company to, resell any of the Notes which that constitute “restricted securities” under Rule 144 that have been reacquired by the Company, Parent, any current or future Subsidiaries or any other affiliates (as defined in Rule 144A under the Securities Act) controlled by the Company, except pursuant to an effective registration statement under the Securities Act;
(q) the Company shall pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Notes or the sale thereof to the Initial Purchasers; and
(rq) to use their commercially reasonable efforts to complete on or prior to the Closing Date all filings and other similar actions required in connection with the perfecting of security interests as and to the extent contemplated by the Collateral Agreements; provided that, the Company and the Guarantors agree to complete all such filings and other similar actions required in connection with the perfection of security interests as and to the extent contemplated by the Collateral Agreements that were not completed prior to the Closing Date, including perfecting the security interest and Mortgaged Vessels in connection with the delivery of the Topaz Driller within 15 days of delivery.
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