R.A.B. HOLDINGS, INC.
$48,000,000
13% Senior Notes due 2008
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
May 1, 1998
CHASE SECURITIES INC.
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Ladies and Gentlemen:
R.A.B. Holdings, Inc., a Delaware corporation ("Holdings" or the "Issuer"),
proposes to issue and sell to Chase Securities Inc. ("CSI" or the "Initial
Purchaser"), upon the terms and subject to the conditions set forth in a
purchase agreement dated April 28, 1998 (the "Purchase Agreement"), $48,000,000
aggregate principal amount of its 13% Senior Notes due 2008 (the "Notes"). The
Notes will be issued pursuant to an Indenture to be dated as of May 1, 1998 (the
"Indenture") between Holdings and PNC Bank, National Association, as trustee
(the "Trustee"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchaser thereunder, the Issuer agrees with the Initial Purchaser, for the
benefit of the holders (including the Initial Purchaser) of the Notes, the
Exchange Notes (as defined herein) and the Private Exchange Notes (as defined
herein) (collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Issuer shall (i) prepare and, not later
than 180 days following the date of original issuance of the Notes (the "Issue
Date"), file with the Commission a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the Securities Act with
respect to a proposed offer to the Holders of the Notes (the "Registered
Exchange Offer") to issue and deliver to such Holders, in exchange for the
Notes, a like aggregate principal amount of debt securities of Holdings (the
"Exchange Notes") that are identical in all material respects to the Notes
(except that the Exchange Notes will not contain terms with respect to transfer
restrictions), (ii) use its best efforts to cause the Exchange Offer
Registration Statement to become effective under the Securities Act no later
than 240 days after the Issue Date and the Registered Exchange Offer to be
consummated no later than 270 days after the Issue Date and (iii) keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date
on which notice of the Registered Exchange Offer is mailed to the Holders (such
period being called the "Exchange Offer Registration Period"). The Exchange
Notes will be issued under the Indenture or an indenture (the "Exchange Notes
Indenture") between the Issuer and the Trustee or such other bank or trust
company that is reasonably satisfactory to the Initial Purchaser, as trustee
(the "Exchange Notes Trustee"), such indenture to be identical in all material
respects to the Indenture (except that the Exchange Notes Indenture will not
contain terms with respect to transfer restrictions) (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement, the
Issuer shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (assuming that such Holder (a) is not an
affiliate of the Issuer or an Exchanging Dealer (as defined herein) not
complying with the requirements of the next sentence, (b) is not the Initial
Purchaser holding Notes that have, or that are reasonably likely to have, the
status of an unsold allotment in an initial distribution, (c) acquires the
Exchange Notes in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any person to participate in the
distribution of the Exchange Notes) and to trade such Exchange Notes from and
after their receipt without any limitations or restrictions under the Securities
Act and without material restrictions under the securities laws of the several
states of the United States. The Issuer, the Initial Purchaser and each
Exchanging Dealer acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, (i) each Holder that is a
broker-dealer electing to exchange Notes acquired for its own account as a
result of market-making activities or other trading activities for Exchange
Notes (an "Exchanging Dealer") is required to deliver a prospectus containing
substantially the information set forth in Annex A hereto on the cover of such
prospectus, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Notes received by such Exchanging Dealer pursuant to the Registered
Exchange Offer and (ii) if the Initial Purchaser elects to sell Private Exchange
Notes (as defined) acquired in exchange for Notes constituting any portion of an
unsold allotment, it is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the Securities
Act and the Exchange Act ("Regulation S-K"), as applicable, in connection with
such a sale.
Upon consummation of the Registered Exchange Offer in accordance with this
Section 1, the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Transfer Restricted Notes that are Private
Exchange Notes, Exchange Notes as to which clause (v) of the first paragraph of
Section 2 hereof is applicable and Exchange Notes held by Participating
Broker-Dealers (as defined), and Holdings shall have no further obligations to
register Transfer Restricted Notes (as defined) (other than Private Exchange
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Notes and other than in respect of Exchange Notes as to which clause (v) of the
first paragraph of Section 2 hereof applies) pursuant to Section 2 hereof.
If, prior to the consummation of the Registered Exchange Offer, any Holder
holds any Notes acquired by it that have, or that are reasonably likely to be
determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Registered
Exchange Offer, the Issuer shall, upon the request of any such Holder,
simultaneously with the delivery of the Exchange Notes in the Registered
Exchange Offer, issue and deliver to any such Holder, in exchange for the Notes
held by such Holder (the "Private Exchange"), a like aggregate principal amount
of debt securities of the Issuer (the "Private Exchange Notes") that are
identical in all material respects to the Exchange Notes (except that the
Exchange Notes will contain terms with respect to transfer restrictions). The
Private Exchange Notes will be issued under the same indenture as the Exchange
Notes, and the Issuer shall use its reasonable best efforts to cause the Private
Exchange Notes to bear the same CUSIP number as the Exchange Notes.
In connection with the Registered Exchange Offer, the Issuer shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days (or
longer, if required by applicable law) after the date on which notice of the
Registered Exchange Offer is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York City time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are applicable to
the Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange Offer and
any Private Exchange, as the case may be, the Issuer shall:
(f) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
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(g) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(h) cause the Trustee or the Exchange Notes Trustee, as the case may be,
promptly to authenticate and deliver to each Holder, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange.
The Issuer shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein in order to permit such prospectus to be used by all persons
subject to the prospectus delivery requirements of the Securities Act for such
period of time as such persons must comply with such requirements in order to
resell the Exchange Notes; provided that (i) in the case where such prospectus
and any amendment or supplement thereto must be delivered by an Exchanging
Dealer, such period shall be the lesser of 180 days and the date on which all
Exchanging Dealers have sold all Exchange Notes held by them and (ii) the Issuer
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange Notes
for a period of 180 days after the consummation of the Registered Exchange
Offer.
The Indenture or the Exchange Notes Indenture, as the case may be, shall
provide that the Notes, the Exchange Notes and the Private Exchange Notes shall
vote and consent together on all matters as one class and that none of the
Notes, the Exchange Notes or the Private Exchange Notes will have the right to
vote or consent as a separate class on any matter.
Interest on each Exchange Note and Private Exchange Note issued pursuant to
the Registered Exchange Offer and in the Private Exchange will accrue from the
last interest payment date on which interest was paid on the Notes surrendered
in exchange therefor or, if no interest has been paid on the Notes, from the
Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuer that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act,
(iii) such Holder is not an affiliate of the Issuer or, if it is such an
affiliate, such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable and (iv) if such
Holder is an Exchanging Dealer, such Holder shall comply with the prospectus
delivery requirements of the Securities Act.
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Notwithstanding any other provisions hereof, the Issuer will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not, as of the consummation of the
Registered Exchange Offer, 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 under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or applicable
interpretations thereof by the Commission's staff the Issuer is not permitted to
effect the Registered Exchange Offer as contemplated by Section 1 hereof, or
(ii) any Notes validly tendered pursuant to the Registered Exchange Offer are
not exchanged for Exchange Notes within 270 days after the Issue Date, or (iii)
the Initial Purchaser so requests with respect to Notes or Private Exchange
Notes not eligible to be exchanged for Exchange Notes in the Registered Exchange
Offer and held by it following the consummation of the Registered Exchange
Offer, or (iv) any applicable law or interpretations do not permit any Holder to
participate in the Registered Exchange Offer, or (v) any Holder that
participates in the Registered Exchange Offer does not receive freely
transferable Exchange Notes in exchange for tendered Notes, or (vi) the Issuer
so elects, then the following provisions shall apply:
(a) The Issuer shall use its best efforts to file as promptly as
practicable (but in no event more than 30 days after so required or requested
pursuant to this Section 2) with the Commission, and thereafter shall use its
best efforts to cause to be declared effective, a shelf registration statement
on an appropriate form under the Securities Act relating to the offer and sale
of the Transfer Restricted Notes (as defined below) by the Holders thereof
from time to time in accordance with the methods of distribution set forth in
such registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Issuer shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus forming
part thereof to be used by Holders of Transfer Restricted Notes for a period
ending on the earlier of (i) two years from the Issue Date or such shorter
period that will terminate when all the Transfer Restricted Notes covered by
the Shelf Registration Statement have been
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sold pursuant thereto and (ii) the date on which the Notes become eligible for
resale without volume restrictions pursuant to Rule 144 under the Securities
Act (in any such case, such period being called the "Shelf Registration
Period"). The Issuer shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period if the
Issuer voluntarily takes any action that would result in Holders of Transfer
Restricted Notes covered thereby not being able to offer and sell such
Transfer Restricted Notes during that period, unless such action is required
by applicable law. Any such period during which the Issuer fails to keep the
registration statement effective and usable for offers and sales of Notes and
Exchange Notes is referred to as a "Suspension Period." A Suspension Period
shall commence on and include the date that the Issuer gives notice that the
Shelf Registration Statement is no longer effective or the prospectus included
therein is no longer usable for offers and sales of Notes and Exchange Notes
and shall end on the date when each Holder of Notes and Exchange Notes covered
by such registration statement either receives the copies of the supplemented
or amended prospectus contemplated by Section 4(j) hereof or is advised in
writing by the Issuer that use of the prospectus may be resumed. If one or
more Suspension Periods occur, the two-year period referenced above shall be
extended by the aggregate of the number of days included in each such
Suspension Period.
(c) Notwithstanding any other provisions hereof, the Issuer will ensure
that (i) any Shelf Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information included
therein in reliance upon or in conformity with written information furnished
to the Issuer by or on behalf of any Holder specifically for use therein (the
"Holders' Information")) does not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
prospectus forming part of any Shelf Registration Statement, and any
supplement to such prospectus (in either case, other than with respect to
Holders' Information), does 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 under which they were made, not
misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders of
Transfer Restricted Notes will suffer damages if the Issuer fails to fulfill its
obligations under Section 1 or Section 2, as applicable, and that it would not
be feasible to ascertain the extent of such damages. Accordingly, if (i) the
applicable Registration Statement is not filed with
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the Commission on or prior to 180 days after the Issue Date, (ii) the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, is not declared effective within 240 days after the Issue Date, (iii)
the Registered Exchange Offer is not consummated on or prior to 270 days after
the Issue Date, or (iv) the Shelf Registration Statement is filed and declared
effective within 270 days after the Issue Date but shall thereafter cease to be
effective (at any time that the Issuer is obligated to maintain the
effectiveness thereof) without being succeeded within 30 days by an additional
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), the Issuer will be
obligated to pay liquidated damages to each Holder of Transfer Restricted Notes,
during the period of one or more such Registration Defaults, in an amount equal
to $ 0.192 per week per $1,000 principal amount of Transfer Restricted Notes
held by such Holder until (i) the applicable Registration Statement is filed,
(ii) the Exchange Offer Registration Statement is declared effective and the
Registered Exchange Offer is consummated, (iii) the Shelf Registration Statement
is declared effective or (iv) the Shelf Registration Statement again becomes
effective, as the case may be. Following the cure of all Registration Defaults,
the accrual of liquidated damages will cease. As used herein, the term "Transfer
Restricted Notes" means (i) each Note until the date on which such Note has been
exchanged for a freely transferable Exchange Note in the Registered Exchange
Offer, (ii) each Note or Private Exchange Note until the date on which it has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iii) each Note or Private
Exchange Note until the date on which it is distributed to the public pursuant
to Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k)
under the Securities Act. Notwithstanding anything to the contrary in this
Section 3(a), the Issuer shall not be required to pay liquidated damages to a
Holder of Transfer Restricted Notes if such Holder failed to comply with its
obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n).
(b) The Issuer shall notify the Trustee and the Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Issuer shall pay the liquidated damages due on the Transfer Restricted Notes
by depositing with the Paying Agent (which may not be the Issuer for these
purposes), in trust, for the benefit of the Holders thereof, prior to 10:00
a.m., New York City time, on the next interest payment date specified by the
Indenture and the Notes, sums sufficient to pay the liquidated damages then due.
The liquidated damages due shall be payable on each interest payment date
specified by the Indenture and the Notes to the record holder entitled to
receive the interest payment to be made on such date. Each obligation to pay
liquidated damages shall be deemed to accrue from and including the date of the
applicable Registration Default.
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(c) The parties hereto agree that the liquidated damages provided for in
this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Notes by reason of the failure of (i) the Shelf Registration
Statement or the Exchange Offer Registration Statement to be filed, (ii) the
Shelf Registration Statement to remain effective or (iii) the Exchange Offer
Registration Statement to be declared effective and the Registered Exchange
Offer to be consummated, in each case to the extent required by this Agreement.
4. Registration Procedures. In connection with any Registration Statement,
the following provisions shall apply:
(a) The Issuer shall (i) furnish to the Initial Purchaser, prior to the
filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and shall use its best efforts to reflect in each such document, when
so filed with the Commission, such comments as the Initial Purchaser may
reasonably propose; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures" section and
the "Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan
of Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement, and include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and (iii) if requested by the Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K, as applicable, in
the prospectus forming a part of the Exchange Offer Registration Statement.
(b) The Issuer shall advise the Initial Purchaser, each Exchanging Dealer
and the Holders (if applicable) and, if requested by any such person, confirm
such advice in writing (which advice pursuant to clauses (ii)-(v) hereof shall
be accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
any Registration Statement or the prospectus included therein or for
additional information;
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(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Issuer of any notification with respect to
the suspension of the qualification of the Notes, the Exchange Notes or the
Private Exchange Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus included therein in
order that the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(c) The Issuer will make every reasonable effort to obtain the withdrawal
at the earliest possible time of any order suspending the effectiveness of any
Registration Statement.
(d) The Issuer will furnish to each Holder of Transfer Restricted Notes
included within the coverage of any Shelf Registration Statement, without
charge, at least one conformed copy of such Shelf Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Issuer will, during the Shelf Registration Period, promptly deliver
to each Holder of Transfer Restricted Notes included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Issuer consents to the use of such prospectus
or any amendment or supplement thereto by each of the selling Holders of
Transfer Restricted Notes in connection with the offer and sale of the
Transfer Restricted Notes covered by such prospectus or any amendment or
supplement thereto.
(f) The Issuer will furnish to the Initial Purchaser and each Exchanging
Dealer, and to any other Holder who so requests, without charge, at least one
conformed copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if the Initial
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Purchaser or Exchanging Dealer or any such Holder so requests in writing, all
exhibits thereto (including those, if any, incorporated by reference).
(g) The Issuer will, during the Exchange Offer Registration Period or the
Shelf Registration Period, as applicable, promptly deliver to the Initial
Purchaser, each Exchanging Dealer and such other persons that are required to
deliver a prospectus following the Registered Exchange Offer, without charge,
as many copies of the final prospectus included in the Exchange Offer
Registration Statement or the Shelf Registration Statement and any amendment
or supplement thereto as the Initial Purchaser, Exchanging Dealer or other
persons may reasonably request; and the Issuer consents to the use of such
prospectus or any amendment or supplement thereto by the Initial Purchaser,
Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement, the Issuer
will use its best efforts to register or qualify, or cooperate with the
Holders of Notes, Exchange Notes or Private Exchange Notes included therein
and their respective counsel in connection with the registration or
qualification of such Notes, Exchange Notes or Private Exchange Notes for
offer and sale under the securities or blue sky laws of such jurisdictions as
any such Holder reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Notes, Exchange Notes or Private Exchange Notes covered
by such Registration Statement; provided that the Issuer will not be required
to qualify generally to do business in any jurisdiction where it is not then
so 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.
(i) The Issuer will cooperate with the Holders of Notes, Exchange Notes or
Private Exchange Notes to facilitate the timely preparation and delivery of
certificates representing Notes, Exchange Notes or Private Exchange Notes to
be sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as the Holders thereof
may request in writing prior to sales of Notes, Exchange Notes or Private
Exchange Notes pursuant to such Registration Statement.
(j) If (i) any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Issuer is required to maintain an effective
Registration Statement or (ii) any Suspension Period remains in effect more
than 240 days after the occurrence thereof, the Issuer will promptly prepare
and file with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to pur-
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chasers of the Notes, Exchange Notes or Private Exchange Notes from a Holder,
the prospectus 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 under which they were made, not
misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Issuer will provide a CUSIP number for the Notes, the Exchange
Notes and the Private Exchange Notes, as the case may be, and provide the
applicable trustee with printed certificates for the Notes, the Exchange Notes
or the Private Exchange Notes, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Issuer will comply with all applicable rules and regulations of the
Commission and will make generally available to its security holders as soon
as practicable after the effective date of the applicable Registration
Statement an earning statement satisfying the provisions of Section 11(a) of
the Securities Act; provided that in no event shall such earning statement be
delivered later than 45 days after the end of a 12-month period (or 90 days,
if such period is a fiscal year) beginning with the first month of the
Issuer's first fiscal quarter commencing after the effective date of the
applicable Registration Statement, which statement shall cover such 12-month
period.
(m) The Issuer will cause the Indenture or the Exchange Notes Indenture, as
the case may be, to be qualified under the Trust Indenture Act, if and as
required by applicable law, in a timely manner.
(n) The Issuer may require each Holder of Transfer Restricted Notes to be
registered pursuant to any Shelf Registration Statement to furnish to the
Issuer such information concerning the Holder and the distribution of such
Transfer Restricted Notes as the Issuer may from time to time reasonably
require for inclusion in such Shelf Registration Statement, and the Issuer may
exclude from such registration the Transfer Restricted Notes of any Holder
that fails to furnish such information within a reasonable time after
receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder of Transfer
Restricted Notes to be registered pursuant thereto agrees by acquisition of
such Transfer Restricted Notes that, upon receipt of any notice from the
Issuer (i) of a Suspension Period under Section 2(b) hereof or (ii) pursuant
to Section 4(b)(ii) through (v) hereof, such Holder will discontinue
disposition of such Transfer Restricted Notes until such Holder's receipt of
(x) notice that the Suspension Period has ended or (y) copies of the
supplemental or amended prospectus contemplated by Section 4(j) hereof, as the
case
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may be, or until advised in writing (the "Advice") by the Issuer that the use
of the applicable prospectus may be resumed. If the Issuer shall give any
notice under Section 4(b)(ii) through (v) during the period that the Issuer is
required to maintain an effective Registration Statement (the "Effectiveness
Period"), such Effectiveness Period shall be extended by the number of days
during such period from and including the date of the giving of such notice to
and including the date when each seller of Transfer Restricted Notes covered
by such Registration Statement shall have received (x) the copies of the
supplemental or amended prospectus contemplated by Section 4(j) (if an amended
or supplemental prospectus is required) or (y) the Advice (if no amended or
supplemental prospectus is required).
(p) In the case of a Shelf Registration Statement, the Issuer shall enter
into such customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as
Holders of a majority in aggregate principal amount of the Notes, Exchange
Notes and Private Exchange Notes being sold or the managing underwriters (if
any) shall reasonably request in order to facilitate any disposition of Notes,
Exchange Notes or Private Exchange Notes pursuant to such Shelf Registration
Statement.
(q) In the case of a Shelf Registration Statement, the Issuer shall (i)
make reasonably available for inspection by a representative of, and Special
Counsel (as defined below) acting for, Holders of a majority in aggregate
principal amount of the Notes, Exchange Notes and Private Exchange Notes being
sold and any underwriter participating in any disposition of Notes, Exchange
Notes or Private Exchange Notes pursuant to such Shelf Registration Statement,
all relevant financial and other records, pertinent corporate documents and
properties of the Issuer and its subsidiaries and (ii) use its best efforts to
have its officers, directors, employees, accountants and counsel supply all
relevant information reasonably requested by such representative, Special
Counsel or any such underwriter (an "Inspector") in connection with such Shelf
Registration Statement.
(r) In the case of a Shelf Registration Statement, the Issuer shall, if
requested by Holders of a majority in aggregate principal amount of the Notes,
Exchange Notes and Private Exchange Notes being sold, their Special Counsel or
the managing underwriters (if any) in connection with such Shelf Registration
Statement, use its best efforts to cause (i) its counsel to deliver an opinion
relating to the Shelf Registration Statement and the Notes, Exchange Notes or
Private Exchange Notes, as applicable, in customary form, (ii) its officers to
execute and deliver all customary documents and certificates requested by
Holders of a majority in aggregate principal amount of the Notes, Exchange
Notes and Private Exchange Notes being sold, their
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Special Counsel or the managing underwriters (if any) and (iii) its
independent public accountants to provide a comfort letter or letters in
customary form, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards
No. 72.
5. Registration Expenses. The Issuer will bear all expenses incurred in
connection with the performance of its obligations under Sections 1, 2, 3 and 4
and the Issuer will reimburse the Initial Purchaser and the Holders for the
reasonable fees and disbursements of one firm of attorneys (in addition to any
local counsel) chosen by the Holders of a majority in aggregate principal amount
of the Notes, the Exchange Notes and the Private Exchange Notes to be sold
pursuant to each Registration Statement (the "Special Counsel") acting for the
Initial Purchaser or Holders in connection therewith.
6. Indemnification. (a) In the event of a Shelf Registration Statement or
in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Issuer shall indemnify and hold harmless each Holder (including,
without limitation, any such Initial Purchaser or Exchanging Dealer), its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls such Holder within the meaning of
the Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6 and Section 7 as a "Holder") from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of Notes, Exchange Notes or Private Exchange
Notes), to which that Holder may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each Holder promptly
upon demand for any legal or other expenses reasonably incurred by that Holder
in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Issuer shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with any Holders'
Information; and provided, further, that with respect to any such untrue
statement in or omission from any related preliminary prospectus, the indemnity
agreement
-13-
contained in this Section 6(a) shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage, liability or action
received Notes, Exchange Notes or Private Exchange Notes to the extent that such
loss, claim, damage, liability or action of or with respect to such Holder
results from the fact that both (A) a copy of the final prospectus was not sent
or given to such person at or prior to the written confirmation of the sale of
such Notes, Exchange Notes or Private Exchange Notes to such person and (B) the
untrue statement in or omission from the related preliminary prospectus was
corrected in the final prospectus unless, in either case, such failure to
deliver the final prospectus was a result of non-compliance by the Issuer with
Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder, severally
and not jointly, shall indemnify and hold harmless the Issuer, its affiliates,
their respective officers, directors, employees, representatives and agents, and
each person, if any, who controls the Issuer within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6(b) and Section 7 as the "Issuer"), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Issuer may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with any Holders' Information furnished to
the Issuer by such Holder, and shall reimburse each Issuer for any legal or
other expenses reasonably incurred by such Issuer in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that no such Holder
shall be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Notes, Exchange Notes or
Private Exchange Notes pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 6(a) or 6(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 6 except to the extent that it has been
-14-
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and
-15-
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Issuer from the offering and sale of the Notes, on the
one hand, and a Holder with respect to the sale by such Holder of Notes,
Exchange Notes or Private Exchange Notes, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuer on the
one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by or on behalf of the Issuer as set forth in the
table on the cover of the Offering Memorandum, on the one hand, bear to the
total proceeds received by such Holder with respect to its sale of Notes,
Exchange Notes or Private Exchange Notes, on the other. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to the Issuer or information supplied by the Issuer on
the one hand or to any Holders' Information supplied by such Holder on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7 shall be deemed
to include, for purposes of this Section 7, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 7, an indemnifying party that is a Holder of
Notes, Exchange Notes or Private Exchange Notes shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Notes, Exchange Notes or Private Exchange Notes sold by such indemnifying
party to any purchaser exceeds the amount of any damages which such indemnifying
party has oth-
-16-
erwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Rules 144 and 144A. The Issuer shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Issuer is not required to file such
reports, it will, upon the written request of any Holder of Transfer Restricted
Notes, make publicly available other information so long as necessary to permit
sales of such Holder's securities pursuant to Rules 144 and 144A. The Issuer
covenants that it will take such further action as any Holder of Transfer
Restricted Notes may reasonably request, all to the extent required from time to
time to enable such Holder to sell Transfer Restricted Notes without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Transfer
Restricted Notes, the Issuer shall deliver to such Holder a written statement as
to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 8 shall be deemed to require the Issuer to
register any of its securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted Notes
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of such Transfer Restricted Notes included in such
offering, subject to the consent of the Issuer (which shall not be unreasonably
withheld or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted Notes on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Issuer has obtained the
written consent of Holders of
-17-
a majority in aggregate principal amount of the Notes, the Exchange Notes and
the Private Exchange Notes, taken as a single class. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose Notes,
Exchange Notes or Private Exchange Notes are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Notes, the Exchange Notes and the Private Exchange Notes
being sold by such Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(i) if to a Holder, at the most current address given by such Holder to the
Issuer in accordance with the provisions of this Section 10(b), which address
initially is, with respect to each Holder, the address of such Holder
maintained by the registrar under the Indenture, with a copy in like manner to
Chase Securities Inc.;
(ii) if to the Initial Purchaser, initially at its address set forth in the
Purchase Agreement; and
(iii) if to the Issuer, initially at the address of Holdings set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors and Assigns. This Agreement shall be binding upon the Issuer
and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act
-18-
and (c) except where otherwise expressly provided, the term "affiliate" has the
meaning set forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(h) Remedies. In the event of a breach by the Issuer or by any Holder of
any of its obligations under this Agreement, each Holder or the Issuer, as the
case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages (other than the recovery of damages for a
breach by the Issuer of its obligations under Sections 1 or 2 hereof for which
liquidated damages have been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The Issuer
and each Holder agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agree that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(i) No Inconsistent Agreements. The Issuer represents, warrants and agrees
that (i) it has not entered into and shall not, on or after the date of this
Agreement, enter into any agreement that is inconsistent with the rights granted
to the Holders in this Agreement or otherwise conflicts with the provisions
hereof, (ii) it has not previously entered into any agreement which remains in
effect granting any registration rights with respect to any of its debt
securities to any person and (iii) without limiting the generality of the
foregoing, without the written consent of the Holders of a majority in aggregate
principal amount of the then outstanding Transfer Restricted Notes, it shall not
grant to any person the right to request the Issuer to register any debt
securities of the Issuer under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Issuer nor any of its
security holders (other than the Holders of Transfer Restricted Notes in such
capacity) shall have the right to include any securities of the Issuer in any
Shelf Registration or Registered Exchange Offer other than Transfer Restricted
Notes.
(k) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein
-19-
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable best efforts
to find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
[Remainder of page intentionally left blank]
-20-
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer and the Initial Purchaser.
Very truly yours,
R.A.B. HOLDINGS, INC.
By: ___________________________________
Name:
Title:
S-1
Accepted by:
CHASE SECURITIES INC.
By: ______________________________
Name:
Title:
S-2
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuer has agreed that, for a period of 180 days
after the Expiration Date (as defined herein), it will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Issuer has agreed that, for a period
of 180 days after the Expiration Date, it will make this Prospectus, as amended
or supplemented, available to any broker-dealer for use in connection with any
such resale. In addition, until _______________, 199_, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.
The Issuer will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes received by broker-dealers for their own account
pursuant to the Registered Exchange Offer may be sold from time to time in one
or more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commission or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Issuer will promptly
send additional copies of this Prospectus and any amendment or supplement to
this Prospectus to any broker-dealer that requests such documents in the Letter
of Transmittal. The Issuer has agreed to pay all expenses incident to the
Registered Exchange Offer (including the expenses of one counsel for the Holders
of the Notes) other than commissions or concessions of any broker-dealers and
will indemnify the Holders of the Notes (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.