Further Agreements of the Issuers. The Issuers or the Company, as applicable, agree: (a) To prepare a Preliminary Prospectus Supplement in a form approved by the Underwriters and, not later than the Commission's close of business on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus except as permitted herein and by the applicable Terms Agreement; to advise the Underwriters , promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; (b) To furnish promptly to each of the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith; (c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) and (ii)
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or agree with each of the Company, as applicable, agreeseveral Initial Purchasers:
(a) To prepare a Preliminary Prospectus Supplement in a form approved at any time prior to completion of the resale of the Securities by the Underwriters Initial Purchasers, to advise the Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each of the Underwriters Initial Purchasers and to one counsel for the Underwriters a signed copy Initial Purchasers, without charge, as many copies of the Registration Statement Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithmay be reasonably requested;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters such number Offering Memorandum, to furnish a copy thereof to each of the following documents Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request: ; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign business organizations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(i) conformed copies not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed with the Commission case may be, not to, and each amendment thereto (to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in each case excluding exhibits other than any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the computation Offering Memorandum;
(k) for a period of per share 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(ii)u) to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCC.
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers or agrees with each of the Company, as applicable, agreeseveral Initial Purchasers:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its reasonable best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each of the Underwriters Initial Purchasers and to counsel for the Underwriters a signed copy Initial Purchasers, without charge, as many copies of the Registration Statement Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithmay be reasonably requested;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters such number Offering Memorandum, to furnish a copy thereof to each of the following documents Initial Purchasers and counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Issuers after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters shall Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request: ; provided that none of the Issuers or any of their respective subsidiaries shall be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction or to take any action which would subject it to taxation in any jurisdiction where it is not then so subject;
(g) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC");
(h) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(i) conformed copies except following the effectiveness of the applicable Exchange Offer Registration Statement or the applicable Shelf Registration Statement, as originally filed with the Commission case may be, not to, and each amendment thereto (to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the applicable Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in each case excluding exhibits other than any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the computation Offering Memorandum;
(j) for a period of per share earnings90 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by such Issuer or any of its subsidiaries (other than the applicable Securities) without the prior written consent of the Initial Purchasers;
(k) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Issuers of the completion of the resale of the Securities, not to, and to cause their affiliated purchasers (ii)as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which they or any of their affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(l) to apply the net proceeds from the sale of the applicable Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds".
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers or jointly and severally agrees with each of the Company, as applicable, agreeseveral Initial Purchasers:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event that makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use their best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each of the Underwriters Initial Purchasers and to counsel for the Underwriters a signed copy Initial Purchasers, without charge, as many copies of the Registration Statement Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithmay be reasonably requested;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters such number Offering Memorandum, to furnish a copy thereof to each of the following documents Initial Purchasers and counsel for the Initial Purchasers and not to effect any such amendment or supplement, to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review unless the Company is advised in writing by counsel that such amendment or supplement is legally required;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Company, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, subject to Section 4(c) hereof, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is in compliance with Section 13 or 15(d) of the Exchange Act, as if it were then subject to Section 13 or 15(d) of the Exchange Act, (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for a period of two years following the Closing Date, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Issuers to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request: ; provided, however, that the Company and the Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages Market ("The Portal Market") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. (the "NASD") relating to trading in The Portal Market and for the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC");
(i) conformed copies not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) that could be integrated with the sale of the Securities in a manner that would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed with the Commission case may be, not to, and each amendment thereto to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in each case excluding exhibits other than any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the computation of per share earnings) and Offering Memorandum or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S;
(k) for a period of 90 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities substantially similar to the Securities, or securities exchangeable for, or convertible into, debt securities substantially similar to the Securities, issued or guaranteed by the Company or any of the Subsidiaries (other than the Securities, the Guarantees and the Exchange Securities and related guarantees) without the prior written consent of JPMorgan on behalf of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of JPMorgan on behalf of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until JPMorgan on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to furnish to each of the Initial Purchasers on the date hereof a copy of the independent accountants' report included in the Offering Memorandum signed by the accountants rendering such report;
(q) to do and perform all things required to be done and performed by it under this Agreement that are within its control prior to or after the Closing Date, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(r) to not take any action prior to the execution and delivery of the Indenture that, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(s) unless required by law, to not take any action prior to the Closing Date that would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(t) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Initial Purchasers are notified), without the prior written consent of JPMorgan on behalf of the Initial Purchasers, unless in the judgment of the Company and its counsel, and after notification to the Initial Purchasers, such press release or communication is required by law; and
(u) to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of proceeds."
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or Issuers, jointly and severally, agree with the Company, as applicable, agreeInitial Purchaser:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchaser promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Preliminary Offering Memorandum or the execution and delivery Final Offering Memorandum untrue or which requires the making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Preliminary Offering Memorandum or the Final Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchaser promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementFinal Offering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its reasonable best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Final Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each the Initial Purchaser, without charge, as many copies of the Underwriters Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested; provided that, in the event of any amendment or supplement to counsel for the Underwriters Final Offering Memorandum, the Initial Purchaser shall have been given a signed copy reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchaser reasonably in advance of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithClosing Date;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters Preliminary Offering Memorandum or the Final Offering Memorandum, to furnish a copy thereof to the Initial Purchaser and counsel for the Initial Purchaser and not to effect any such number amendment or supplement to which the Initial Purchaser shall reasonably object by notice to the Issuers after a reasonable period of review, which shall not be in any case longer than five business days after receipt of such copy;
(d) if, at any time prior to completion of the following documents initial resale of the Securities by the Initial Purchaser, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchaser or counsel for the Issuers, to amend or supplement the Final Offering Memorandum in order that the Final Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission so that the Final Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act;
(f) for a period of three years following the Closing Date, to furnish to the Initial Purchaser copies of any annual reports, quarterly reports and current reports filed by the Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Issuers to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to use their reasonable best efforts to qualify the Securities for sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may reasonably request: designate and to continue such qualifications in effect for so long as required for the distribution of the Securities; provided, however, that the Issuers and their respective subsidiaries shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not then qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject.
(h) to use their reasonable best efforts to assist the Initial Purchaser in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible for clearance and settlement through the Depository Trust Company ("DTC");
(i) conformed copies not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed the case may be, not to, and to cause its affiliates (as such term is defined in Rule 501(B) of Regulation D) not to, and not to authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the Commission offering restrictions requirement of Regulation S; and each amendment thereto (in each case excluding exhibits other than not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the computation Final Offering Memorandum;
(k) for a period of per share earnings90 days from the date hereof, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement (except as required by the Registration Rights Agreement) for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Issuers or any of their respective subsidiaries (other than the Securities or the Exchange Securities) without the prior written consent of the Initial Purchaser (which consent may not be unreasonably withheld);
(l) until the earlier of (i) the date that all the Notes have either been exchanged or registered under a shelf registration statement in accordance with the terms of the Registration Rights Agreement and (ii) two years after the Closing Date, without the prior written consent of the Initial Purchaser, not to, and not permit any of their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by them, except for Notes purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act;
(m) in connection with the offering of the Securities, until the Initial Purchaser shall have notified the Issuers of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act), not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(n) to consummate the Tender Offer and, pursuant thereto, repurchase all of the outstanding 9% senior subordinated notes due 2008 which are tendered for repurchase and not withdrawn thereunder;
(o) to consummate the repurchase contemplated by the ▇▇▇▇▇▇ Repurchase and Release Agreement within 15 days of the Closing Date;
(p) to not take any action prior to the Closing Date which would require the Final Offering Memorandum to be amended or supplemented pursuant to Section 4(d); and
(q) to apply the net proceeds from the sale of the Securities as set forth in the Final Offering Memorandum under the heading "Use of proceeds."
Appears in 1 contract
Sources: Purchase Agreement (Cooperative Computing Inc /De/)
Further Agreements of the Issuers. The Issuers or agree with the Company, as applicable, agree--------------------------------- Initial Purchaser:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by advise the Underwriters Initial Purchaser promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchaser promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities Notes for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawal;the lifting thereof at the earliest possible time.
(b) To furnish promptly to each of the Underwriters Initial Purchaser and to counsel for the Underwriters a signed copy Initial Purchaser, without charge, as many copies of the Registration Statement Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;may be reasonably requested.
(c) To deliver promptly Prior to making any amendment or supplement to the Underwriters Offering Memorandum, to furnish a copy thereof to the Initial Purchaser and counsel for the Initial Purchaser and not to effect any such number amendment or supplement to which the Initial Purchaser shall reasonably object by notice to the Issuers after a reasonable period to review.
(d) If, at any time prior to completion of the following documents resale of the Notes by the Initial Purchaser, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchaser or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law.
(e) For so long as the Underwriters shall Notes are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Notes and prospective purchasers of the Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Notes and prospective purchasers of the Notes designated by such holders).
(f) To promptly take from time to time such actions as the Initial Purchaser may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may designate and to continue such qualifications in effect for so long as required for the resale of the Notes, and to arrange for the determination of the eligibility for investment of the Notes under the laws of such jurisdictions as the Initial Purchaser may reasonably request: ; provided -------- that the Issuers and the Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction.
(g) To assist the Initial Purchaser in arranging for the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations -------- adopted by the National Association of Securities Dealers, Inc. ("NASD") ---- relating to trading in the PORTAL Market and for the Notes to be eligible for clearance and settlement through The Depository Trust Company ("DTC"), the --- Euroclear System and Cedel Bank, societe anonyme.
(h) Not to, and to cause their affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Notes in a manner which would require registration of the Notes under the Securities Act.
(i) conformed copies Except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed the case may be, not to, and to cause their affiliates not to, authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Notes, the Private Exchange Notes or the Exchange Notes by means of any form of general solicitation or general advertising within the meaning of Regulation D, by means of any directed selling efforts (as defined in Regulation S under the Securities Act) in connection with the Commission Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and each amendment thereto (in each case excluding exhibits other than not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Notes to the Initial Purchaser as contemplated by this Agreement and the computation Offering Memorandum.
(j) During the period from the Closing Date until two years after the Closing Date or the effectiveness of per share earningsthe Exchange Offer Registration Statement or Shelf Registration Statement, without the prior written consent of the Initial Purchaser, not to, and not permit any of their affiliates (as defined in Rule 144 under the Securities Act) which they control to, resell any of the Notes, the Private Exchange Notes or Exchange Notes that have been reacquired by them, except for Notes, the Private Exchange Notes or Exchange Notes purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act.
(iik) Not to, for so long as the Notes are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder.
(l) In connection with the offering of the Notes, until the Initial Purchaser shall have notified the Issuers of the completion of the resale of the Notes, not to, and to cause their affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which they or any of their affiliated purchasers has a beneficial interest, any Notes, or attempt to induce any person to purchase any Notes; and not to, and to cause their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Notes.
(m) In connection with the offering of the Notes, to make their officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchaser.
(n) To furnish to the Initial Purchaser on the date hereof a copy of the independent accountants' report included in the Offering Memorandum signed by the accountants rendering such report.
(o) To do and perform all things required to be done and performed by them under this Agreement that are within their control prior to or after the Closing Date, and to use their best efforts to satisfy all conditions precedent on their part to the delivery of the Notes.
(p) To not take any action prior to the execution and delivery of the Indenture that, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture.
(q) Prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition (financial or otherwise) or results of operations, business affairs, management or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchaser is notified), without the prior written consent of the Initial Purchaser, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchaser, such press release or communication is required by law.
(r) To apply the net proceeds from the sale of the Notes as set forth in the Offering Memorandum under the heading "Use of Proceeds".
Appears in 1 contract
Sources: Purchase Agreement (Mediacom LLC)
Further Agreements of the Issuers. The Each of the Issuers or the Company, as applicable, agreeagrees:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by the Underwriters advise you promptly and, not later than the Commission's close of business on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required requested by Rule 430A(a)(3) under the Securities Actyou, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus except as permitted herein and by the applicable Terms Agreement; to advise the Underwriters , promptly after receiving notice thereofconfirm such advice in writing, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of (i) the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement, of the suspension of the qualification of the Offered Securities Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for any such purpose, or of any request purpose by the Commission for or any state securities commission or other regulatory authority, and (ii) the amending happening of any event that makes any statement of a material fact made in the Offering Memorandum untrue or supplementing that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements therein, in light of the Registration Statement or the Prospectus Supplement or for additional information; andcircumstances under which they were made, in the event of not misleading. The Issuers shall use their best efforts to prevent the issuance of any stop order or of any order preventing or suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws and, if at any time any state securities commission shall issue any stop order suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws, the Issuers shall use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its best efforts every reasonable effort to obtain its withdrawal;the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish promptly to each you, without charge, as many copies of the Underwriters Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. The Issuers have authorized you to counsel for use the Underwriters a signed copy Preliminary Offering Memorandum to make offers of the Registration Statement as originally filed Initial Notes. The Issuers consent to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by you in connection with the Commission, and each amendment thereto filed Exempt Resales that are in compliance with the Commission, including all consents and exhibits filed therewith;this Agreement.
(c) To deliver promptly Not to amend or supplement the Offering Memorandum prior to the Underwriters Closing Date or during the period referred to in the next sentence unless you shall previously have been advised of, and shall not have reasonably objected to, such number amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished a copy of such amendment or supplement. If, in connection with any Exempt Resales or market making transactions after the date of this Agreement, any event shall occur that, in the judgement of the following documents as Issuers or in the Underwriters judgement of counsel to you, makes any statement of a material fact in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements in the Offering Memorandum, in light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any applicable laws, the Issuers shall reasonably request: promptly notify you of such event and prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) conformed copies the statements in the Offering Memorandum as amended or supplemented will, in light of the Registration Statement as originally filed with circumstances at the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and time that the computation of per share earnings) Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To cooperate with you and your counsel in connection with the qualification of the Initial Notes for offer and sale by you and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request (provided, however, that none of the Issuers shall be obligated to register or qualify as a foreign corporation in any jurisdiction in which it is not now so registered or qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject). The Issuers shall continue such qualification in effect so long as required by law for distribution of the Initial Notes and shall file such consents to service of process or other documents as may be necessary in order to effect such qualification.
(e) Prior to the Closing Date, to furnish to you, any internal financial statements of the Companies that have been prepared by or furnished to the Issuers for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum.
(f) To use its reasonable best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Initial Notes.
(g) Not to 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 Initial Notes in a manner that would require the registration under the Securities Act of the sale to you or the Eligible Purchasers of the Initial Notes; provided no statement is made as to actions by the Initial Purchasers or persons acting on their behalf.
(h) For a period of 120 days from the date of the Offering Memorandum, not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any debt securities of the Issuers or any of their subsidiaries having a maturity of more than one year from the date of issue of such securities, except (i) for the Senior Subordinated Notes including the notes issued in the exchange offer related to such Senior Subordinated Notes, (ii) for the New Notes in connection with the Exchange Offer or (iii) with the prior consent of ▇▇▇▇▇▇ Brothers Inc.
(i) For the period that is two years after the Closing Date or for so long as necessary to comply with Rule 144A in connection with resales by registered holders or beneficial owners of Initial Notes, whichever is longer, to make available to such registered holder or beneficial owner of Initial Notes in connection with any sale thereof and any prospective purchaser of such Initial Notes from such registered holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).
(j) To comply with the agreements in the Registration Rights Agreement, and all agreements set forth in the representation letters of the Issuers' to DTC relating to the approval of the Notes by DTC for "book-entry" transfer.
(k) To use its best efforts to effect the inclusion of the Notes in the National Association of Securities Dealers, Inc. Automated Quotation System - PORTAL ("PORTAL").
(l) To apply the net proceeds from the sale of the Initial Notes being sold by the Issuers as set forth in the Offering Memorandum under the caption "Use of Proceeds."
Appears in 1 contract
Sources: Purchase Agreement (Avalon Cable Holdings Finance Inc)
Further Agreements of the Issuers. The Issuers or Each of the CompanyIssuers, as applicablejointly and severally, agreeagrees with each of the several Initial Purchasers:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or upon receipt of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or or, to the best knowledge of the Company, the threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its reasonable best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each of the Underwriters Initial Purchasers and to counsel for the Underwriters a signed copy Initial Purchasers, without charge, as many copies of the Registration Statement Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithmay be reasonably requested;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters such number Offering Memorandum, to furnish a copy thereof to each of the following documents Initial Purchasers and counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review, which shall not in any case be longer than 10 business days after receipt of such copy;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Company, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for a period of three years following the Closing Date, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request: ; PROVIDED that in no event shall any of the Issuers be obligated to qualify as a foreign corporation in any jurisdiction in which it is not then so qualified or to take any action which would subject it to general consent to service of process in any action other than one arising out of the offering of the Securities in any such jurisdiction where it is not then so subject, or to subject itself to the payment of taxes in excess of a nominal amount in any jurisdiction where it is not then so subject;
(h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC");
(i) conformed copies not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed the case may be, not to, and to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities, the Exchange Securities or the Private Exchange Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D, by means of any directed selling efforts (as defined in Regulation S) in connection with the Commission Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and each amendment thereto (in each case excluding exhibits other than not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities to the Initial Purchasers as contemplated by this Agreement and the computation Offering Memorandum;
(k) for a period of per share 90 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Issuers (other than the Securities, the Exchange Securities, the Private Exchange Securities and debt incurred in the ordinary course of business) without the prior written consent of the Initial Purchasers;
(l) until consummation of the Exchange Offer, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities, the Exchange Securities or the Private Exchange Securities that have been reacquired by them, except for any such securities purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act;
(m) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(n) in connection with the offering of the Securities, to make its officers, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(o) to furnish to each of the Initial Purchasers on the date hereof a copy of the independent accountants' report included in the Offering Memorandum signed by the accountants rendering such report;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control prior to or after the Closing Date, and to use its reasonable best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) not to take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) not to take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to any of the Issuers, its condition (financial or otherwise) or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law or the rules of any national securities exchange or inter-dealer quotation system; and
(t) and (ii)to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds."
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers or the Company, as applicable, agreeagrees:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by the Underwriters advise you promptly and, not later than the Commission's close of business on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required requested by Rule 430A(a)(3) under the Securities Actyou, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus except as permitted herein and by the applicable Terms Agreement; to advise the Underwriters , promptly after receiving notice thereofconfirm such advice in writing, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of (i) the issuance by the Commission any state securities commission of any stop order suspending the qualification or exemption from qualification of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement, of the suspension of the qualification of the Offered Securities Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for any such purpose, or of any request purpose by the Commission for or any state securities commission or other regulatory authority, and (ii) the amending happening of any event that makes any statement of a material fact made in the Offering Memorandum untrue or supplementing that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements therein, in light of the Registration Statement or the Prospectus Supplement or for additional information; andcircumstances under which they were made, in the event of not misleading. The Issuers shall use their best efforts to prevent the issuance of any stop order or of any order preventing or suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws and, if at any time any state securities commission shall issue any stop order suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws, the Issuers shall use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its best efforts every reasonable effort to obtain its withdrawal;the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish promptly to each you, without charge, as many copies of the Underwriters Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. The Issuers have authorized you to counsel for use the Underwriters a signed copy Preliminary Offering Memorandum to make offers of the Registration Statement as originally filed Initial Notes. The Issuers consent to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by you in connection with the Commission, and each amendment thereto filed Exempt Resales that are in compliance with the Commission, including all consents and exhibits filed therewith;this Agreement.
(c) To deliver promptly Not to amend or supplement the Offering Memorandum prior to the Underwriters Closing Date or during the period referred to in the next sentence unless you shall previously have been advised of, and shall not have reasonably objected to, such number amendment or supplement within a reasonable time, but in any event not longer than five days after being furnished a copy of such amendment or supplement. If, in connection with any Exempt Resales or market making transactions after the date of this Agreement, any event shall occur that, in the judgement of the following documents as Issuers or in the Underwriters judgement of counsel to you, makes any statement of a material fact in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements in the Offering Memorandum, in light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with any applicable laws, the Issuers shall reasonably request: promptly notify you of such event and prepare an appropriate amendment or supplement to the Offering Memorandum so that (i) conformed copies the statements in the Offering Memorandum as amended or supplemented will, in light of the Registration Statement as originally filed with circumstances at the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and time that the computation of per share earnings) Offering Memorandum is delivered to prospective Eligible Purchasers, not be misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To cooperate with you and your counsel in connection with the qualification of the Initial Notes for offer and sale by you and by dealers under the state securities or Blue Sky laws of such jurisdictions as you may request (provided, however, that none of the Issuers shall be obligated to register or qualify as a foreign corporation in any jurisdiction in which it is not now so registered or qualified or to take any action that would subject it to general consent to service of process or taxation in any jurisdiction in which it is not now so subject). The Issuers shall continue such qualification in effect so long as required by law for distribution of the Initial Notes and shall file such consents to service of process or other documents as may be necessary in order to effect such qualification.
(e) Prior to the Closing Date, to furnish to you, any internal financial statements of the Companies that have been prepared by or furnished to the Issuers for any period subsequent to the period covered by the financial statements appearing in the Offering Memorandum.
(f) To use its reasonable best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Initial Notes.
(g) Not to 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 Initial Notes in a manner that would require the registration under the Securities Act of the sale to you or the Eligible Purchasers of the Initial Notes; provided no statement is made as to actions by the Initial Purchasers or persons acting on their behalf.
(h) For a period of 120 days from the date of the Offering Memorandum, not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any debt securities of the Issuers or any of their subsidiaries having a maturity of more than one year from the date of issue of such securities, except (i) for the New Notes in connection with the Exchange Offer or (ii) with the prior consent of ▇▇▇▇▇▇ Brothers Inc.
(i) For the period that is two years after the Closing Date or for so long as necessary to comply with Rule 144A in connection with resales by registered holders or beneficial owners of Initial Notes, whichever is longer, to make available to such registered holder or beneficial owner of Initial Notes in connection with any sale thereof and any prospective purchaser of such Initial Notes from such registered holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).
(j) To comply with the agreements in the Registration Rights Agreement, and all agreements set forth in the representation letters of the Issuers' to DTC relating to the approval of the Notes by DTC for "book-entry" transfer.
(k) To use its best efforts to effect the inclusion of the Notes in the National Association of Securities Dealers, Inc. Automated Quotation System - PORTAL ("PORTAL").
(l) To apply the net proceeds from the sale of the Initial Notes being sold by the Issuers as set forth in the Offering Memorandum under the caption "Use of Proceeds."
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers or the Company, as applicable, agreeagrees:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by the Underwriters advise you promptly and, not later than the Commission's close of business on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required requested by Rule 430A(a)(3) under the Securities Actyou, to file a Prospectus Supplement pursuant to Rule 424(bconfirm such advice in writing, (i) under the Securities Act; to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus except as permitted herein and by the applicable Terms Agreement; to advise the Underwriters , promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission or any state securities commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement qualification or the Prospectus Supplement, of the suspension of the exemption from qualification of the Offered Securities Notes and the Guarantees (if any) for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for any such purpose, or of any request purpose by the Commission for or any state securities commission or other regulatory authority, and (ii) the amending or supplementing happening of any event that makes any statement of a material fact made in the Registration Statement Preliminary Offering Memorandum or the Prospectus Supplement Offering Memorandum untrue or for additional information; andwhich requires the making of any additions to or changes in the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements therein, in the event light of the circumstances under which they were made, not misleading. The Issuers shall use all reasonable efforts to prevent the issuance of any stop order or of any order preventing or suspending the qualification or exemption of the Notes and the Guarantees (if any) under any state securities or Blue Sky laws and, if at any time any state securities commission shall issue any stop order suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws, the Issuers shall use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its best all reasonable efforts to obtain its withdrawal;the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish promptly to each you without charge, as many copies of the Underwriters Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. The Issuers consent to counsel for the Underwriters a signed copy use, in accordance with the securities or blue sky laws of the Registration Statement as originally filed jurisdictions in which the Notes are offered by you and by dealers, of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by you in connection with the Commission, and each amendment thereto filed Exempt Resales that are in compliance with the Commission, including all consents and exhibits filed therewith;this Agreement.
(c) To deliver promptly Not to amend or supplement the Offering Memorandum prior to the Underwriters Closing Date or during the period referred to in (d) below unless you shall previously have been advised of, and shall not have reasonably objected to, such number amendment or supplement within a reasonable time, but in any event not longer than three days after being furnished a copy of such amendment or supplement. The Issuers shall promptly prepare, upon any reasonable request by you, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(d) If, after the date of this Agreement and prior to the completion of the following documents as distribution of the Underwriters Notes, any event shall reasonably request: occur that, in the judgment of the Issuers or in your judgment or the judgment of counsel to you, makes any statement of a material fact in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements in the Offering Memorandum, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Issuers will promptly notify you of such event and prepare an appropriate amendment or supplement to the Offering Memorandum so that, at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, (i) conformed copies the Offering Memorandum as amended or supplemented will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) circumstances under which they were made, not misleading and (ii) the Offering Memorandum will comply with applicable law.
(e) Promptly from time to time to take such action as you may reasonably request to qualify the Notes for offering and sale under the state securities or Blue Sky laws of such jurisdictions as you may request (provided, however, that the Issuers shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject) and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes.
(f) To use all best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Notes.
(g) Except as contemplated in the Registration Rights Agreement, not to 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 you or the Eligible Purchasers of the Notes.
(h) Not to, and to not permit any of its affiliates to, resell any Notes that have been acquired by any of them, except in accordance with the Securities Act and the rules and regulations of the Commission.
(i) Not to, and to not permit any of its affiliates or any person acting on its or their behalf to, engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offering of the Notes.
(j) Not to, and to not permit any of its affiliates or any person acting on its or their behalf to, engage in any directed selling efforts within the meaning of Rule 902(b) of Regulation S with respect to the Notes, and to, and require its affiliates or any person acting on its or their behalf to, comply with the offering restrictions requirements of Regulation S in connection with the offering of the Notes outside of the United States.
(k) Not to, and to not permit any of its subsidiaries to take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(l) For so long as any Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) or, if earlier, until two years after the Closing Date, and during any period in which the Issuers or the Guarantors, if any, are not subject to Section 13 or 15(d) of the Exchange Act, to make available upon request to any registered holder or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of Notes from such registered holder or beneficial owner upon request of such holder, the information required by Rule 144A(d)(4) under the Securities Act.
(m) To use its best efforts to permit the Notes to be eligible for trading in The PORTAL/SM/ Market ("PORTAL"), a subsidiary of The Nasdaq Stock Market, Inc., and to permit the Notes to be eligible for clearance and settlement through DTC.
(n) To apply the net proceeds from the sale of the Notes substantially in accordance with the description set forth in the Offering Memorandum under the section entitled "Use of Proceeds."
(o) To take such steps as shall be necessary to ensure that neither of the Issuers shall become an "investment company" within the meaning of such term under the Investment Company Act and the rules and regulations of the Commission thereunder.
(p) Except for borrowings under the Credit Agreement, to be dated as of June 13, 2003, among the Issuers and the lenders named therein (the "Credit Facility"), for a period of 180 days from the date of the Offering Memorandum, not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any debt securities of the Issuers in a public or private offering for cash having a maturity of more than one year from the date of issue of such securities, except (i) for the Exchange Notes and the Exchange Note Guarantees (if any) in connection with the Exchange Offer or (ii) with the prior consent of the Initial Purchasers, which consent shall not be unreasonably withheld.
Appears in 1 contract
Sources: Purchase Agreement (CBD Media LLC)
Further Agreements of the Issuers. The Issuers or the CompanyIssuers, as applicablejointly and severally, agreeagree with each Initial Purchaser:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Preliminary Offering Memorandum or the execution and delivery Final Offering Memorandum untrue or which requires the making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Preliminary Offering Memorandum or the Final Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementFinal Offering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use their reasonable best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Final Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each the Initial Purchasers, without charge, as many copies of the Underwriters Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested; provided that, in the event of any amendment or supplement to counsel for the Underwriters Final Offering Memorandum, the Initial Purchasers shall have been given a signed copy reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithClosing Date;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters Preliminary Offering Memorandum or the Final Offering Memorandum, to furnish a copy thereof to the Initial Purchasers and counsel for the Initial Purchasers and not to effect any such number amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Issuers after a reasonable period of review, which shall not be in any case longer than five business days after receipt of such copy;
(d) if, at any time prior to completion of the following documents initial resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Final Offering Memorandum in order that the Final Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission so that the Final Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act;
(f) for a period of three years following the Closing Date, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Issuers to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder; provided, however, that any reports or information accepted for filing by the Commission and readily available on the Internet shall be deemed to have been provided to the Initial Purchasers;
(g) to use their reasonable best efforts to qualify the Securities for sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request: designate and to continue such qualifications in effect for so long as required for the distribution of the Securities; provided, however, that the Issuers and their respective subsidiaries shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not then qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject;
(h) to use their reasonable best efforts to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC");
(i) conformed copies not to, and to cause their affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed the case may be, not to, and to cause its affiliates (as such term is defined in Rule 501(B) of Regulation D) not to, and not to authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the Commission offering restrictions requirement of Regulation S; and each amendment thereto (in each case excluding exhibits other than not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the computation Final Offering Memorandum;
(k) for a period of per share earnings90 days from the date hereof, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement (except as required by the Registration Rights Agreement) for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Issuers or any of their respective subsidiaries (other than the Securities or the Exchange Securities) without the prior written consent of J.P. Morgan Securities Inc. (which consent may not be unreason▇▇▇▇ ▇▇▇▇▇▇ld);
(l) until the earlier of (i) the date that all the Notes have either been exchanged or registered under a shelf registration statement in accordance with the terms of the Registration Rights Agreement and (ii) two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by them, except for Notes purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act;
(m) in connection with the offering of the Securities, until the Initial Purchasers shall have notified the Issuers of the completion of the resale of the Securities, not to, and to cause their affiliated purchasers (as defined in Regulation M under the Exchange Act), not to, either alone or with one or more other persons, bid for or purchase, for any account in which they or any of their affiliated purchasers have a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(n) if less than all of the capital stock of Speedware is acquired in the Tender Offer, to use their best efforts to acquire or cause to be acquired any untendered shares as promptly as practicable after the Closing Date;
(o) not to take any action prior to the Closing Date which would require the Final Offering Memorandum to be amended or supplemented pursuant to Section 4(d); and
(p) to apply the net proceeds from the sale of the Securities as set forth in the Final Offering Memorandum under the heading "Use of proceeds."
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers or agrees --------------------------------- with each of the Company, as applicable, agreeseveral Initial Purchasers:
(a) To prepare a Preliminary Prospectus Supplement in a form approved prior to the resale of the Units by the Underwriters Initial Purchasers, to advise the Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment the statements therein, in the light of the circumstances under which they were made, not misleading; and upon receipt of such notice, each Initial Purchaser agrees to suspend use of the Registration Statement Offering Memorandum until the Issuers have amended or supplemented the Offering Memorandum to correct such misstatement or omission or to effect compliance with this paragraph (including any post-effective amendment) or any amendment or supplement to the Prospectus except as permitted herein and by the applicable Terms Agreementa); to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly as soon as available to each of the Underwriters Initial Purchasers and to counsel for the Underwriters a signed copy Initial Purchasers, without charge, as many copies of the Registration Statement Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithmay be reasonably requested;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters such number Offering Memorandum, to furnish a copy thereof to each of the following documents Initial Purchasers and counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Issuers after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as any Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for so long as any Securities are outstanding, to furnish to each Initial Purchaser, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year and, as soon as available, a copy of each report filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company or Holdings to the Trustee, the Warrant Agent or to the holders of the Securities pursuant to the Indenture, the Warrant Agreement or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Underwriters shall Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request: ; provided that Holdings and its subsidiaries shall -------- not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Units, the Notes and the Warrants to be designated Portal Market ("Portal Market") ------------- securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to ---- trading in the Portal Market and for the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC"); --- (i) conformed copies not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Registration Statement as originally filed with Securities in a manner which would require registration of the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and Securities under the computation of per share earnings) and (ii)Securities Act;
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or the CompanyIssuers, as applicablejointly and severally, agreeagree with each Initial Purchaser:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Preliminary Offering Memorandum or the execution and delivery Final Offering Memorandum untrue or which requires the making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Preliminary Offering Memorandum or the Final Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementFinal Offering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use their reasonable best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Final Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each the Initial Purchasers, without charge, as many copies of the Underwriters Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested; provided that, in the event of any amendment or supplement to counsel for the Underwriters Final Offering Memorandum, the Initial Purchasers shall have been given a signed copy reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithClosing Date;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters Preliminary Offering Memorandum or the Final Offering Memorandum, to furnish a copy thereof to the Initial Purchasers and counsel for the Initial Purchasers and not to effect any such number amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Issuers after a reasonable period of review, which shall not be in any case longer than five business days after receipt of such copy;
(d) if, at any time prior to completion of the following documents initial resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Final Offering Memorandum in order that the Final Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission so that the Final Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act;
(f) for a period of three years following the Closing Date, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Issuers to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder; provided, however, that any reports or information accepted for filing by the Commission and readily available on the Internet shall be deemed to have been provided to the Initial Purchasers;
(g) to use their reasonable best efforts to qualify the Securities for sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably request: designate and to continue such qualifications in effect for so long as required for the distribution of the Securities; provided, however, that the Issuers and their respective subsidiaries shall not be obligated to qualify as a foreign corporation in any jurisdiction where it is not then qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject;
(h) to use their reasonable best efforts to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC");
(i) conformed copies not to, and to cause their affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed the case may be, not to, and to cause its affiliates (as such term is defined in Rule 501(B) of Regulation D) not to, and not to authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the Commission offering restrictions requirement of Regulation S; and each amendment thereto (in each case excluding exhibits other than not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the computation Final Offering Memorandum;
(k) for a period of per share earnings90 days from the date hereof, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement (except as required by the Registration Rights Agreement or the Exchange and Registration Rights Agreement dated March 30, 2005 among the Company, the Company's subsidiaries identified therein and the Initial Purchasers (the "Initial Registration Rights Agreement")) for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Issuers or any of their respective subsidiaries (other than (i) the Securities or the Exchange Securities or (ii) the Securities or the Exchange Securities as defined in the Initial Registration Rights Agreement) without the prior written consent of the Initial Purchasers (which consent may not be unreasonably withheld);
(l) until the earlier of (i) the date that all the Notes have either been exchanged or registered under a shelf registration statement in accordance with the terms of the Registration Rights Agreement and (ii) two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by them, except for Notes purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act;
(m) in connection with the offering of the Securities, until the Initial Purchasers shall have notified the Issuers of the completion of the resale of the Securities, not to, and to cause their affiliated purchasers (as defined in Regulation M under the Exchange Act), not to, either alone or with one or more other persons, bid for or purchase, for any account in which they or any of their affiliated purchasers have a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(n) not to take any action prior to the Closing Date which would require the Final Offering Memorandum to be amended or supplemented pursuant to Section 4(d); and
(o) to apply the net proceeds from the sale of the Securities as set forth in the Final Offering Memorandum under the heading "Use of proceeds."
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or the Company, as applicable, further agree:
(a) (i) To prepare a Preliminary the Prospectus Supplement in a form approved by ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇ Brothers”), which approval shall not be unreasonably withheld or delayed, and to file such Prospectus pursuant to Rule 424(b) under the Underwriters and, Securities Act not later than the Commission's ’s close of business on the second business day Business Day following the execution and delivery of each Terms this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b; (ii) under the Securities Act; to make no further amendment or any supplement to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus prior to the Delivery Date except as permitted herein and by the applicable Terms Agreementherein; (iii) to advise the Underwriters Underwriters, promptly after receiving it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus Supplement or any amended Prospectus has been filed and to furnish such the Underwriters with copies thereof; (iv) to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes; (v) to advise such the Underwriters, promptly after receiving it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus SupplementProspectus, of the suspension of the qualification of the Offered Securities Notes or the Guarantees for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, and (vi) in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel for the Underwriters if requested a signed or facsimile signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earningsexhibits) and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, and, if the delivery of a prospectus is required at any time after the Execution Time in connection with the offering or sale of the Notes and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading when such Prospectus is delivered, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Underwriters and, upon their request, to prepare and furnish without charge to the Underwriters and to any dealer in securities as many copies of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance as the Underwriters may from time to time reasonably request;
(d) During the time that delivery of a prospectus is required for the initial offering and sale of Notes to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or ▇▇▇▇▇▇ Brothers, be required by the Securities Act or that is requested by the Commission;
(e) For so long as the delivery of a prospectus is required in connection with the initial offering or sale of the Notes, prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus and any document incorporated by reference in the Prospectus pursuant to Rule 424 of the Securities Act, to furnish a copy thereof to the Underwriters and counsel for the Underwriters and obtain the consent of ▇▇▇▇▇▇ Brothers, which consent shall not unreasonably be withheld;
(f) As soon as practicable after the Effective Date, to make generally available to the Company’s security holders and to deliver to the Underwriters an earnings statement of the Company and its consolidated subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 of the Securities Act);
(g) Promptly from time to time, to take such action as ▇▇▇▇▇▇ Brothers may reasonably request to qualify the Notes and the Guarantees for offering and sale under the securities laws of such jurisdictions in the United States and Canada as ▇▇▇▇▇▇ Brothers may reasonably request and in such other jurisdictions as the Company and ▇▇▇▇▇▇ Brothers may mutually agree, and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes and the Guarantees; provided that, in connection therewith, none of the Issuers shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(h) Not to take, directly or indirectly, any action which is designed to stabilize or manipulate, or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation, of the price of any security of the Company in connection with the initial offering of the Notes (except after consultation with the Underwriters and as may be permitted by under federal securities laws);
(i) To use its commercially reasonable efforts to cause the Notes to be accepted for clearance and settlement through the facilities of DTC;
(j) To execute and deliver the Indenture in form and substance reasonably satisfactory to ▇▇▇▇▇▇ Brothers; and
(k) To apply the net proceeds from the issuance of the Notes as set forth under “Use of Proceeds” in the Prospectus.
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers or further agrees with the Company, as applicable, agreeUnderwriters that:
(a) To The Issuers will prepare a Preliminary the Prospectus Supplement in a form approved by the Underwriters andRepresentative, and file such Prospectus pursuant to Rule 424(b) or Rule 462 of the Rules and Regulations not later than the Commission's close of business on the second business day following the execution and delivery of each Terms this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under 430A of the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities ActRules and Regulations; to make no further amendment or any supplement to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus prior to the Closing Date except as permitted herein and by the applicable Terms Agreementherein; to advise the Underwriters Representative, promptly after receiving it receives notice thereofthereof at any time prior to the expiration of the period during which the Underwriters are obligated under the Securities Act and the Rules and Regulations to deliver a prospectus, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus Supplement or any amended Prospectus has been filed and to furnish such Underwriters the Representative with copies thereof; to advise such Underwritersthe Representative, promptly after receiving it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus SupplementProspectus, of the suspension of the qualification of the Offered Securities 1998 Refinancing Certificates for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for any additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to promptly use promptly its best efforts to obtain its withdrawal;withdrawal at the earliest possible time.
(b) To The Issuers will furnish promptly to each of the Representative or to counsel to the Underwriters and to counsel for the Underwriters a three signed copy copies of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;, without charge.
(c) To The Issuers will deliver promptly to the Underwriters Representative such number of the following documents as the Underwriters Representative shall reasonably request: (i) a conformed copies copy of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case, without consents or exhibits) for delivery to each Underwriter and (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus. In the case excluding exhibits of the Prospectus, each of Airplanes Limited and Airplanes Trust further agrees to furnish copies of the Prospectus in New York and London, prior to 5:00 P.M. (London time) on the business day following the date of this Agreement, in such quantities as the Representative reasonably requests. If the delivery of a prospectus is required at any time prior to the expiration of nine months after the Effective Time in connection with the offering or sale of the 1998 Refinancing Certificates and, if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other than reason it shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Securities Act, the Issuers shall amend or supplement the Prospectus, as the Issuers deem appropriate to correct such statement or omission or effect such compliance, notify the Representative of such amendment or supplement and, upon the Representative's request, prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representative may from time to time reasonably request of such amended Prospectus or supplement to the Prospectus which corrects such statement or omission or effects such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the 1998 Refinancing Certificates at any time nine months or more after the Effective Time, upon the request of the Representative but at the expense of such Underwriter, prepare and deliver to such Underwriter as many copies as the Representative may reasonably request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) The Issuers will file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that (i) may, in the reasonable judgment of the Issuers or in the reasonable judgment of the Representative at any time prior to the expiration of the period during which the Underwriters are obligated under the Securities Act and the Rules and Regulations to deliver a prospectus, be required by the Securities Act or the Rules and Regulations or (ii) is requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the Registration Statement or supplement to the Prospectus or (ii) any Prospectus pursuant to Rule 424 or Rule 462 of the Rules and Regulations, the Issuers will, at any time prior to the expiration of the period during which the Underwriters are obligated under the Securities Act and the Rules and Regulations to deliver a prospectus, furnish a copy thereof to the Representative and counsel for the Underwriters and not file any such document to which the Representative shall reasonably object after having been given reasonable notice of the proposed filing thereof.
(f) So long as any of the 1998 Refinancing Certificates are outstanding, the Issuers will furnish to the Underwriters, by first-class mail as soon as practicable (i) all documents distributed by the 1998 Refinancing Trustee, either Indenture Trustee, the Cash Manager or the Issuers to holders of 1998 Refinancing Certificates, or filed with the Commission pursuant to the Exchange Act, or any rule or regulation of the Commission thereunder, (ii) any order of the Commission under the Securities Act or the Exchange Act applicable to either of the 1998 Refinancing Trusts or to the Issuers as originators of the 1998 Refinancing Trusts, or pursuant to a "no action" letter obtained from the staff of the Commission by the Issuers and affecting either of the 1998 Refinancing Trusts or the Issuers as originators of the 1998 Refinancing Trusts, and (iii) from time to time, such other information concerning the Issuers or either of the 1998 Refinancing Trusts as the Underwriters may reasonably request.
(g) The Issuers will promptly from time to time take such action as the Representative may reasonably request to qualify the 1998 Refinancing Certificates for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representative may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the 1998 Refinancing Certificates; provided that, in connection therewith, the Issuers shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(h) During the period beginning on the date hereof and continuing to and including the later of (i) the completion of the distribution of the 1998 Refinancing Certificates covered by this Agreement and the computation of per share earnings) and (ii)) the Closing Date, the Issuers will not offer, sell, contract to sell or otherwise dispose of, or cause to be offered, sold, contracted for sale or disposed, any debt securities of the Issuers, other than the 1998 Refinancing Notes or any certificates of fractional undivided interests in any debt of the Issuers which are substantially similar to the 1998 Refinancing Notes, or the 1998 Refinancing Certificates, other than as contemplated in the Prospectus, without the prior written consent of the Representative.
(i) The Issuers will make generally available to the Issuers' Certificateholders and to the Underwriters as soon as practicable an earning statement covering the twelve-month period ending March 31, 1998 that satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(j) To the extent, if any, that the ratings provided with respect to the 1998 Refinancing Certificates by any Rating Agency are conditional upon the furnishing of documents or the taking of any other actions by the Issuers, the Issuers will furnish such documents and take any such other actions.
(k) The Issuers will use their reasonable best efforts to cause the 1998 Refinancing Certificates to be listed on the Luxembourg Stock Exchange prior to the Closing Date and will furnish from time to time any and all documents, instruments, information and undertakings that may reasonably be necessary or advisable in order to comply with the listing rules of the Luxembourg Stock Exchange unless and until the Issuers, after consultation with the Representative, determine to terminate the listing of the 1998 Refinancing Certificates on such exchange.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or Company and the CompanyTrust, as applicablejointly and severally, agreeagree to use their reasonable best efforts:
(a) To prepare any registration statement or prospectus, or if none is required, a Preliminary Prospectus Supplement remarketing memorandum, including any preliminary remarketing memorandum, in each case, in a form approved by the Underwriters andRemarketing Agent, not later than in connection with the Commission's close of business on Remarketing, and to file any such prospectus pursuant to the second business day following Securities Act within the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be period required by Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities ActRules and Regulations; to make no further amendment or any supplement to the Registration Statement (including any post-effective amendment) Statement, Prospectus or any amendment or supplement to the Prospectus except as permitted herein and Remarketing Materials which shall be reasonably disapproved by the applicable Terms AgreementRemarketing Agent promptly after reasonably notice thereof; to advise the Underwriters Remarketing Agent, promptly after receiving either of them receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus Supplement (or the Remarketing Materials) or any amended Prospectus (or the Remarketing Materials) has been filed and to furnish such Underwriters the Remarketing Agent with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of Remarketed Capital Securities; to advise such Underwritersthe Remarketing Agent, promptly after receiving it receives notice thereof, of the issuance by the Commission of any stop order or of any order 16 119 preventing or suspending the use of any Preliminary the Prospectus Supplement or the Prospectus SupplementRemarketing Materials, of the suspension of the qualification of the Offered Remarketed Capital Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement Statement, the Prospectus or the Prospectus Supplement Remarketing Materials or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement Remarketing Materials or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;the withdrawal of such order.
(b) To furnish promptly to each of the Underwriters Remarketing Agent and to counsel for the Underwriters Remarketing Agent a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;.
(c) To Prior to 10:00 a.m. New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to deliver promptly to the Underwriters Remarketing Agent in New York City such number of the following documents as the Underwriters Remarketing Agent shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Declaration, the Purchase Contract Agreement and the computation of per share earningsIndenture, (ii) the Prospectus (or the Remarketing Materials) and any amended or supplemented Prospectus (or the Remarketing Materials), (iii) any document incorporated by reference in the Prospectus and the Remarketing Materials (excluding exhibits thereto) and (ii)iv) any Remarketing Materials; and, if the delivery of a prospectus is required at any time in connection with the Remarketing and if at such time any event shall have occurred as a result of which the Prospectus or the Remarketing Materials as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus or the Remarketing Materials, as applicable, is delivered, not misleading, or if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus and the Remarketing Materials or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities act or the Exchange Act, to notify the Remarketing Agent and, upon its request, to file such document and to prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Remarketing Agent, be required by the Securities Act or requested by the Commission.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or jointly and severally agree with the Company, Initial Purchaser as applicable, agreeset forth below in this Section 5:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by the Underwriters and, not later than the Commission's close of business on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; to make no further amendment The Issuers will furnish to the Registration Statement Initial Purchaser, without charge, as many copies of the Final Memorandum and any supplements and amendments thereto as they may reasonably request.
(including any post-effective amendmentb) or Prior to making any amendment or supplement to the Prospectus except as permitted herein Preliminary Memorandum or the Final Memorandum, the Issuers shall furnish a copy thereof to the Initial Purchaser and by counsel to the applicable Terms Agreement; to advise the Underwriters , promptly after receiving notice thereof, of the time when Initial Purchaser and will not effect any such amendment or supplement to which the Prospectus Supplement has been filed and Initial Purchaser shall reasonably object by notice to furnish such Underwriters with copies thereof; the Company after a reasonable period to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;review.
(c) To deliver If, at any time prior to completion of the distribution of the Securities by the Initial Purchaser, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchaser or counsel for the Issuers, to amend or supplement the Final Memorandum in order that the Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it is necessary to amend or supplement the Final Memorandum to comply with applicable law, the Issuers will promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Final Memorandum, as so amended or supplemented, will comply with applicable law and furnish to the Underwriters Initial Purchaser such number of copies of such amendment or supplement as they may reasonably request.
(d) So long as any Securities are outstanding and are "Restricted Securities" within the following documents meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Issuers will furnish to holders of the Securities and prospective purchasers of Securities designated by such holders, upon request of such holders or such prospective purchasers, the information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) So long as the Underwriters Securities and Exchange Securities are outstanding, the Issuers will furnish to the Initial Purchaser copies of any annual reports, quarterly reports and current reports filed with the Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the SEC, and such other documents, reports and information as shall be furnished by the Issuers to the Trustee or to the holders of the Securities and Exchange Securities pursuant to the Indenture.
(f) The Issuers will use their best efforts to qualify the Securities for sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser reasonably request: designates and to continue such qualifications in effect so long as reasonably required for the distribution of the Securities. The Issuers will also arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchaser reasonably requests. Notwithstanding the foregoing, the Issuers shall not be obligated to qualify as a foreign corporation in any jurisdiction in which they are not so qualified or to file a general consent to service of process or to subject themselves to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(g) The Issuers will use their best efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market and to permit the Securities to be eligible for clearance and settlement through DTC.
(h) Except following the effectiveness of any Registration Statement (as defined in the Registration Rights Agreement) and except for such offers as may be made as a result of, or subsequent to, filing such Registration Statement or amendments thereto prior to the effectiveness thereof, the Issuers will not, and will cause their Affiliates not to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (as those 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.
(i) conformed The Company will apply the net proceeds from the sale of the Securities as set forth in the Final Memorandum.
(j) The Issuers will take such steps as shall be necessary to ensure that neither the Company nor any of its subsidiaries shall become (i) an "investment company" within the meaning of the Investment Company Act or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a holding company within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(k) The Company and its subsidiaries will not, and will cause their Affiliates not to, take any action that would require the registration under the Securities Act of the Securities (other than pursuant to the Registration Rights Agreement) including, without limitation, (i) engaging in any directed selling efforts (within the meaning of Regulation S) during any applicable restricted period or (ii) offering any other securities in a manner that would be integrated with the transactions contemplated hereby.
(l) Prior to the consummation of the Exchange Offer or the effectiveness of an applicable shelf registration statement, if, in the reasonable judgment of the Initial Purchaser, the Initial Purchaser or any of its affiliates are required to deliver an offering memorandum in connection with sales of, or market-making activities with respect to, the Securities, (A) the Issuers will periodically amend or supplement the Final Memorandum so that the information contained in the Final Memorandum complies with the requirements of Rule 144A of the Securities Act, (B) the Issuers will amend or supplement the Final Memorandum when necessary to reflect any material changes in the information provided therein so that the Final Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing as of the date the Final Memorandum is so delivered, not misleading and (C) the Issuers will provide the Initial Purchaser with copies of each such amended or supplemented Final Memorandum, as the Registration Initial Purchaser may reasonably request. The Issuers hereby expressly acknowledge that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 5(l).
(m) The Issuers will not terminate the consent solicitation made pursuant to the Consent Solicitation Statement prior to 5:00 P.M. (New York City time) on March 27, 1998 and from and after such date shall consummate such consent solicitation as promptly as possible in accordance with the terms of the Consent Solicitation Statement as originally filed with in effect on the Commission and each amendment thereto date hereof.
(n) The Issuers will do all things reasonably necessary to satisfy the closing conditions set forth in each case excluding exhibits other than this Agreement and the computation of per share earnings) and (ii)Section 7 hereof.
Appears in 1 contract
Sources: Purchase Agreement (Chattem Inc)
Further Agreements of the Issuers. The Each of the Issuers or agrees with each of the Company, as applicable, agreeseveral Initial Purchasers:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each of the Underwriters Initial Purchasers and to counsel for the Underwriters a signed copy Initial Purchasers, without charge, as many copies of the Registration Statement Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithmay be reasonably requested;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters such number Offering Memorandum, to furnish a copy thereof to each of the following documents Initial Purchasers and counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Issuers after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and beneficial owners and prospective purchasers of the Securities designated by such holders, upon request of such holders or such beneficial owners or prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and beneficial owners and prospective purchasers of the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by either of the Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or 20-F or 6-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Issuers to the Trustees or to the holders of the Securities pursuant to the Indentures or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request: ; provided that the Issuers and the subsidiaries of DCC shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction (other than as required by this Agreement);
(h) to arrange, with the cooperation of the Initial Purchasers, for (i) conformed copies of the Registration Statement as originally filed Dollar Securities to be (A) designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the Commission rules and each amendment thereto regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in each case excluding exhibits other than this Agreement the PORTAL Market, (B) eligible for clearance and settlement through The Depository Trust Company ("DTC"), the computation of per share earningsEuroclear System ("Euroclear") and Cedel S.A. ("Cedel") and (C) listed on the Luxembourg Exchange and (ii)) for the DM Securities to be (A) eligible for clearance and settlement through Euroclear and Cedel and (B) listed on the Luxembourg Exchange;
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or agree with the Company, as applicable, agree--------------------------------- Initial Purchaser:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by advise the Underwriters Initial Purchaser promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchaser promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus SupplementOffering Memorandum, of the any suspension of the qualification of the Offered Securities Notes for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any Preliminary Prospectus Supplement or the Prospectus Supplement Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawal;the lifting thereof at the earliest possible time.
(b) To furnish promptly to each of the Underwriters Initial Purchaser and to counsel for the Underwriters a signed copy Initial Purchaser, without charge, as many copies of the Registration Statement Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;may be reasonably requested.
(c) To deliver promptly Prior to making any amendment or supplement to the Underwriters Offering Memorandum, to furnish a copy thereof to the Initial Purchaser and counsel for the Initial Purchaser and not to effect any such number amendment or supplement to which the Initial Purchaser shall reasonably object by notice to the Issuers after a reasonable period to review.
(d) If, at any time prior to completion of the following documents resale of the Notes by the Initial Purchaser, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchaser or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law.
(e) For so long as the Underwriters shall Notes are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Notes and prospective purchasers of the Notes designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Notes and prospective purchasers of the Notes designated by such holders).
(f) To promptly take from time to time such actions as the Initial Purchaser may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may designate and to continue such qualifications in effect for so long as required for the resale of the Notes, and to arrange for the determination of the eligibility for investment of the Notes under the laws of such jurisdictions as the Initial Purchaser may reasonably request: ; provided -------- that the Issuers and the Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction.
(g) To assist the Initial Purchaser in arranging for the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations ------ adopted by the National Association of
(h) Not to, and to cause their affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Notes in a manner which would require registration of the Notes under the Securities Act.
(i) conformed copies Except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed the case may be, not to, and to cause their affiliates not to, authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Notes, the Private Exchange Notes or the Exchange Notes by means of any form of general solicitation or general advertising within the meaning of Regulation D, by means of any directed selling efforts (as defined in Regulation S under the Securities Act) in connection with the Commission Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and each amendment thereto (in each case excluding exhibits other than not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Notes to the Initial Purchaser as contemplated by this Agreement and the computation Offering Memorandum.
(j) During the period from the Closing Date until two years after the Closing Date or the effectiveness of per share earningsthe Exchange Offer Registration Statement or Shelf Registration Statement, without the prior written consent of the Initial Purchaser, not to, and not permit any of their affiliates (as defined in Rule 144 under the Securities Act) which they control to, resell any of the Notes, the Private Exchange Notes or Exchange Notes that have been reacquired by them, except for Notes, the Private Exchange Notes or Exchange Notes purchased by the Issuers or any of their affiliates and resold in a transaction registered under the Securities Act.
(iik) Not to, for so long as the Notes are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder.
(l) In connection with the offering of the Notes, until the Initial Purchaser shall have notified the Issuers of the completion of the resale of the Notes, not to, and to cause their affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which they or any of their affiliated purchasers has a beneficial interest, any Notes, or attempt to induce any person to purchase any Notes; and not to, and to cause their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Notes.
(m) In connection with the offering of the Notes, to make their officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchaser.
(n) To furnish to the Initial Purchaser on the date hereof a copy of the independent accountants' report included in the Offering Memorandum signed by the accountants rendering such report.
(o) To do and perform all things required to be done and performed by them under this Agreement that are within their control prior to or after the Closing Date, and to use their best efforts to satisfy all conditions precedent on their part to the delivery of the Notes.
(p) To not take any action prior to the execution and delivery of the Indenture that, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture.
(q) Prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition (financial or otherwise) or results of operations, business affairs, management or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchaser is notified), without the prior written consent of the Initial Purchaser, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchaser, such press release or communication is required by law.
(r) To apply the net proceeds from the sale of the Notes as set forth in the Offering Memorandum under the heading "Use of Proceeds."
Appears in 1 contract
Sources: Purchase Agreement (Mediacom LLC)
Further Agreements of the Issuers. The Issuers or the CompanyEach Issuer agrees, as applicablejointly and severally, agreewith each Initial Purchaser:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by to advise the Underwriters Initial Purchasers promptly and, not later than if requested, confirm such advice in writing, of the Commission's close happening of business on any event which makes any statement of a material fact made in the second business day following Final Offering Memorandum untrue or which requires the execution and delivery making of each Terms Agreement or, if applicable, such earlier any additions to or changes in the Final Offering Memorandum (as amended or supplemented from time as may be required by Rule 430A(a)(3to time) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; in order to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to statements therein, in the Prospectus except as permitted herein and by light of the applicable Terms Agreementcircumstances under which they were made, not misleading; to advise the Underwriters , Initial Purchasers promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus SupplementFinal Offering Memorandum, of the any suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its reasonable best efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any the Preliminary Prospectus Supplement Offering Memorandum or the Prospectus Supplement Final Offering Memorandum or suspending any such qualificationqualification and, if any such suspension is issued, to use promptly its best efforts to obtain its withdrawalthe lifting thereof at the earliest possible time;
(b) To to furnish promptly to each of the Underwriters Initial Purchasers and to counsel for the Underwriters a signed copy Initial Purchasers, without charge, as many copies of the Registration Statement Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or supplements thereto) as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewithmay be reasonably requested;
(c) To deliver promptly prior to making any amendment or supplement to the Underwriters such number Final Offering Memorandum, to furnish a copy thereof to each of the following documents Initial Purchasers and counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur, information shall become known or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Initial Purchasers or counsel for the Company, to amend or supplement the Final Offering Memorandum in order that the Final Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, to promptly prepare (subject to Section 4(c) above) such amendment or supplement as may be necessary to correct such untrue statement or omission so that the Final Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Underwriters Securities are outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the Initial Purchasers, unless publicly available, copies of any reports and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Notes pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request: ; provided, however, that no Issuer shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a general consent to service of process in any jurisdiction;
(h) to use its reasonable best efforts to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages (“PORTAL”) Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. (“NASD”) relating to trading in the PORTAL Market and for the Securities to be eligible for clearance and settlement through The Depository Trust Company (“DTC”);
(i) conformed copies not to, and to cause its Affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the sale of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as originally filed with the Commission case may be, not to, and each amendment thereto (to use its reasonable best efforts to cause its Affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in each case excluding exhibits other than any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the computation Final Offering Memorandum; and not to engage in any directed selling efforts within the meaning of per share Regulation S with respect to the Securities, and all such persons will comply with the offering restrictions requirement of Regulation S;
(k) for a period of 90 days from the date of the Final Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities or guaranteed by the Issuers (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to use its reasonable efforts to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement and the Registration Rights Agreement that are within its control prior to or after the Closing Date, and to use its reasonable best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except in the ordinary course of business and consistent with the past practices of the Company and of which the Initial Purchasers are notified, including the speech by ▇▇▇▇▇▇ ▇▇▇▇▇ at the ▇▇ ▇▇▇▇ Best Ideas Conference), without the consent of the Initial Purchasers, unless in the judgment of the Company and its counsel, and after notification to the Initial Purchasers, such press release or communication is required by law; and
(r) and (ii)to apply the net proceeds from the sale of the Securities as set forth in the Final Offering Memorandum under the heading “Use of proceeds.”
Appears in 1 contract
Sources: Purchase Agreement (Nbty Inc)
Further Agreements of the Issuers. The Each of the Issuers or the Company, as applicable, agreeagrees:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by the Underwriters advise you promptly and, not later than the Commission's close of business on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required requested by Rule 430A(a)(3) under the Securities Actyou, to file a Prospectus Supplement pursuant to Rule 424(bconfirm such advice in writing, (i) under the Securities Act; to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus except as permitted herein and by the applicable Terms Agreement; to advise the Underwriters , promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission or any state securities commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement qualification or the Prospectus Supplement, of the suspension of the exemption from qualification of the Offered Securities Notes for offering or sale in any jurisdiction, of or the initiation or threatening of any proceeding for any such purpose, or of any request purpose by the Commission for or any state securities commission or other regulatory authority, and (ii) the amending or supplementing happening of any event that makes any statement of a material fact made in the Registration Statement Preliminary Offering Memorandum or the Prospectus Supplement Offering Memorandum untrue or for additional information; andwhich requires the making of any additions to or changes in the Preliminary Offering Memorandum or Offering Memorandum in order to make the statements therein, in the event light of the circumstances under which they were made, not misleading. The Issuers shall use all reasonable efforts to prevent the issuance of any stop order or of any order preventing or suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws and, if at any time any state securities commission shall issue any stop order suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws, the Issuers shall use of any Preliminary Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its best all reasonable efforts to obtain its withdrawal;the withdrawal or lifting of such order at the earliest possible time.
(b) To furnish promptly to each you without charge, as many copies of the Underwriters Preliminary Offering Memorandum and the Offering Memorandum, and any amendments or supplements thereto, as you may reasonably request. The Issuers consent to counsel for the Underwriters a signed copy use, in accordance with the securities or blue sky laws of the Registration Statement as originally filed jurisdictions in which the Notes are offered by you and by dealers, of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by you in connection with the Commission, and each amendment thereto filed Exempt Resales that are in compliance with the Commission, including all consents and exhibits filed therewith;this Agreement.
(c) To deliver promptly Not to amend or supplement the Offering Memorandum prior to the Underwriters Closing Date or during the period referred to in (d) below unless you shall previously have been advised of, and shall not have reasonably objected to, such number amendment or supplement within a reasonable time, but in any event not longer than three days after being furnished a copy of such amendment or supplement. The Issuers shall promptly prepare, upon any reasonable request by you, any amendment or supplement to the Offering Memorandum that may be necessary or advisable in connection with Exempt Resales.
(d) If, after the date of this Agreement and prior to the completion of the following documents as distribution of the Underwriters Notes, any event shall reasonably request: occur that, in the judgment of the Issuers or in your judgment or the judgment of counsel to you, makes any statement of a material fact in the Offering Memorandum untrue or that requires the making of any additions to or changes in the Offering Memorandum in order to make the statements in the Offering Memorandum, in the light of the circumstances at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, the Issuers will promptly notify you of such event and prepare an appropriate amendment or supplement to the Offering Memorandum so that, at the time that the Offering Memorandum is delivered to prospective Eligible Purchasers, (i) conformed copies the Offering Memorandum as amended or supplemented will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) circumstances under which they were made, not misleading and (ii) the Offering Memorandum will comply with applicable law.
(e) Promptly from time to time to take such action as you may reasonably request to qualify the Notes for offering and sale under the state securities or Blue Sky laws of such jurisdictions as you may request (provided, however, that the Issuers shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it to general consent to service of process in any jurisdiction in which it is not now so subject) and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes.
(f) To use all best efforts to do and perform all things required to be done and performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Notes.
(g) Except as contemplated in the Registration Rights Agreement, not to 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 you or the Eligible Purchasers of the Notes.
(h) Not to, and to not permit any of its affiliates to, resell any Notes that have been acquired by any of them, except in accordance with the Securities Act and the rules and regulations of the Commission.
(i) Not to, and to not permit any of its affiliates or any person acting on its or their behalf to, engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offering of the Notes.
(j) Not to, and to not permit any of its affiliates or any person acting on its or their behalf to, engage in any directed selling efforts within the meaning of Rule 902(b) of Regulation S with respect to the Notes, and to, and require its affiliates or any person acting on its or their behalf to, comply with the offering restrictions requirements of Regulation S in connection with the offering of the Notes outside of the United States.
(k) Not to, and to not permit any of its subsidiaries or any person acting on its or their behalf to, take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes.
(l) For so long as any Notes remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) or, if earlier, until two years after the Closing Date, and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Exchange Act, to make available upon request to any registered holder or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of Notes from such registered holder or beneficial owner upon request of such holder, the information required by Rule 144A(d)(4) under the Securities Act.
(m) To use its best efforts to permit the Notes to be eligible for trading in The PORTALSM Market (“PORTAL”), a subsidiary of The Nasdaq Stock Market, Inc., and to permit the Notes to be eligible for clearance and settlement through DTC.
(n) To apply the net proceeds from the sale of the Notes substantially in accordance with the description set forth in the Offering Memorandum under the section entitled “Use of Proceeds.”
(o) To take such steps as shall be necessary to ensure that none of the Issuers or any of their subsidiaries shall become an “investment company” within the meaning of such term under the Investment Company Act and the rules and regulations of the Commission thereunder.
(p) Except for borrowings under the amendment to the Credit Agreement, dated as of June 13, 2003, as amended through the Closing Date, by and among Holdings, CBD Media LLC and the lenders named therein (the “Credit Facility”), for a period of 180 days from the date of the Offering Memorandum, not to, directly or indirectly, sell, contract to sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, any debt securities of the Issuers in a public or private offering for cash having a maturity of more than one year from the date of issue of such securities, except (i) for the Exchange Notes in connection with the Exchange Offer or (ii) with the prior consent of the Initial Purchasers, which consent shall not be unreasonably withheld.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or the Company, as applicable, agree:
(a) To prepare a Preliminary the Final Prospectus Supplement in a form approved by the Underwriters and, and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business 10:00 A.M., New York City time, on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Actthis Agreement; to make no further amendment or any supplement to the Registration Statement (including any post-effective amendment) Statement, the Final Prospectus or any amendment or supplement to the Interim Prospectus except as permitted herein and by the applicable Terms Agreementherein; to advise the Underwriters Underwriters, promptly after receiving it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus Supplement or any amended Final Prospectus has been filed and to furnish such the Underwriters with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the PIES; to advise such the Underwriters, promptly after receiving it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Final Prospectus or any Preliminary Prospectus Supplement or the Prospectus SupplementInterim Prospectus, of the suspension of the qualification of the Offered Securities PIES for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Final Prospectus Supplement or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary the Final Prospectus Supplement or the Prospectus Supplement or suspending any such qualification, to use promptly its their best efforts to obtain its withdrawal;.
(b) To furnish promptly to each of the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;.
(c) To deliver promptly to the Underwriters in New York City such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Indenture, the Amended Declaration, the Guarantee Agreement, the Purchase Contract Agreement, the Pledge Agreement, the Support Agreement and the computation Remarketing Agreement) and, (ii) the Final Prospectus (not later than 10:00 A.M., New York City time, of per share earningsthe day following the execution and delivery of this Agreement) and any amended or supplemented Final Prospectus (not later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement) and (iii) any document incorporated by reference in any Interim Prospectus or Final Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the PIES (or any other securities relating thereto) and if at such time any event shall have occurred as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when the Final Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Final Prospectus or to file under the Exchange Act any document incorporated by reference in the Final Prospectus in order to comply with the Securities Act, the Exchange Act or the Trust Indenture Act, to notify the Underwriters and to prepare and to file such amendment, supplement or document, to cause any amendment of the Registration Statement containing an amended Final Prospectus to be made effective as soon as possible and to prepare and, at any time prior to the expiration of nine months after the date hereof, furnish, without charge (and at any time thereafter furnish at the expense of the Underwriters), to each Underwriter and to any dealer in securities as many copies as the Underwriters may from time to time request of an amended or supplemented Final Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement or the Final Prospectus or any supplement to the Final Prospectus that may, in the judgment of the Company or the Underwriters, be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Final Prospectus or any document incorporated by reference in the Final Prospectus, to furnish a copy thereof to the Underwriters and counsel for the Underwriters; and not to file any such amendment or supplement which shall be disapproved by the Underwriters promptly after reasonable notice.
(f) As soon as practicable to make generally available to the Company's security holders and to deliver to the Underwriters an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(g) During a period of five years following the effective date of the Registration Statement, to deliver to the Underwriters copies of all reports or other communications (financial or other) furnished to shareholders of the Company, and deliver to the Underwriters (i) as soon as they are available, copies of any reports and financial statements furnished to or filed by the Company or Capital Markets with the Commission or any national securities exchange on which the PIES or any class of securities of the Company or Capital Markets is listed; and (ii) such additional information concerning the business and financial condition of the Company or Capital Markets as the Underwriters may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to the Company's shareholders generally or to the Commission).
(h) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Debentures, the Trust Preferred Securities, the Guarantees, the Purchase Contracts, the Common Stock, the Corporate PIES and the obligations of the Company pursuant to the Support Agreement for offering and sale under the securities laws of such jurisdictions as the Underwriters may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Debentures, the Trust Preferred Securities, the Guarantees, the Purchase Contracts, the Common Stock, the Corporate PIES and the obligations of the Company pursuant to the Support Agreement; provided that in connection therewith, neither the Company nor Capital Markets nor the Trust, shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(i) The Company, Capital Markets and the Trust shall not (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any PIES, Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, as the case may be, or any securities of the Company, Capital Markets or the Trust similar to the PIES, Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, or any security convertible into or exercisable or exchangeable for PIES, Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, or file any registration statement under the Securities Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the PIES, Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, or any securities convertible into or exercisable or exchangeable for PIES, Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of PIES, Common Stock, Purchase Contracts, Trust Preferred Securities, Debentures or such other securities, in cash or otherwise, for a period of 90 days from the date hereof without the prior written consent of ▇▇▇▇▇▇ Brothers Inc., other than (i) pursuant to this Agreement, (ii) Treasury PIES or Corporate PIES to be created or recreated upon substitution of pledged securities or shares of Common Stock issuable upon early settlement of the Corporate PIES or Treasury PIES, (iii) any shares of Common Stock issued by the Company upon exercise of an option, warrant, or the conversion of a security described herein, (iv) any shares of Common Stock issued, or options to purchase such shares granted, pursuant to existing employee benefit plans described in the Final Prospectus, (v) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan or (vi) any medium-term notes registered under the Registration Statement as of the date hereof..
(j) To use their best efforts to complete the listing of the Corporate PIES and the Common Stock to be issued and sold pursuant to the Purchase Contracts on the New York Stock Exchange, Inc., subject only to official notice of issuance and evidence of satisfactory distribution.
(k) To use the net proceeds received by it from the sale of the PIES pursuant to this Agreement in the manner specified in the Final Prospectus under the caption "Use of Proceeds."
Appears in 1 contract
Further Agreements of the Issuers. The Issuers or the Company, as applicable, agree:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by the Underwriters and, not later than the Commission's close of business on the second business day following the execution and delivery of each Terms Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act, to file a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act; to make no further amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus except as permitted herein and by the applicable Terms Agreement; to advise the Underwriters , promptly after receiving notice thereof, of the time when any supplement to the each Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the any Prospectus Supplement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the any Prospectus Supplement or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus Supplement or the any Prospectus Supplement or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) and (ii)originally
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers or agrees with each of the Company, as applicable, agreeseveral Underwriters:
(a) To prepare a Preliminary Prospectus Supplement in a form approved by If the Underwriters and, not later than the Commission's close of business on the second business day following Effective Time is prior to the execution and delivery of each Terms Agreement this Agreement, to file the Prospectus with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicableapplicable and if consented to by the Underwriters, such earlier time as may be required by Rule 430A(a)(3subparagraph (4)) under the Securities Act, to file a Prospectus Supplement pursuant to of Rule 424(b) under within the Securities Acttime period prescribed by such rule and to provide evidence satisfactory to the Underwriters of such timely filing; to make no further file promptly all reports and any definitive proxy or information statements required to be filed by the Note Issuers with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a Prospectus is required in connection with the offering and sale of the Securities;
(b) to advise the Underwriters promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and not to effect such amendment or supplement without the consent of the Underwriters, which consent shall not be unreasonably withheld or delayed; to advise the Underwriters promptly of the receipt of any comments from the Commission and of the effectiveness of the Registration Statement (including any post-effective amendmentin each case if the Effective Time is subsequent to the execution and delivery of this Agreement) or and of any amendment or supplement to the Prospectus except as permitted herein and Registration Statement or the Prospectus, or of any request by the applicable Terms Agreement; to advise the Underwriters Commission therefor, promptly after receiving notice thereof, of the time when any supplement to the Prospectus Supplement has been filed and to furnish such Underwriters with copies thereof; to advise such Underwriters, promptly after receiving notice thereof, upon obtaining knowledge of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; to advise the Underwriters promptly of any order preventing or suspending the use of any Preliminary Prospectus Supplement or prospectus relating to the Prospectus SupplementSecurities, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, jurisdiction and of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus Supplement or for additional information; and, in the event of and to use its reasonable efforts to prevent the issuance of any stop order or of any such order preventing or suspending the use of any Preliminary Prospectus Supplement or prospectus relating to the Prospectus Supplement Securities or suspending any such qualificationqualification and, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the following documents as the Underwriters shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings) and (ii)if
Appears in 1 contract