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EXHIBIT 10.7
REGISTRATION RIGHTS AGREEMENT
Dated May 18, 1999
among
▇▇▇▇ CORPORATION,
▇▇▇▇ OPERATIONS CORPORATION,
▇▇▇▇ CORPORATION AUTOMOTIVE HOLDINGS
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
SCOTIA CAPITAL MARKETS (USA) INC.
TD SECURITIES (USA) INC.
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THIS REGISTRATION RIGHTS AGREEMENT ("AGREEMENT") is made and
entered into on May 18, 1999, among ▇▇▇▇ CORPORATION, a Delaware corporation
(the "COMPANY"), ▇▇▇▇ OPERATIONS CORPORATION, a Delaware corporation ("LOC") and
▇▇▇▇ CORPORATION AUTOMOTIVE HOLDINGS, a Delaware corporation (together with LOC,
the "GUARANTORS"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY
INC., CHASE SECURITIES INC., CREDIT SUISSE FIRST BOSTON CORPORATION, DEUTSCHE
BANK SECURITIES INC., NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC, SCOTIA CAPITAL
MARKETS (USA) INC. and TD SECURITIES (USA) INC., as representatives of the
initial purchasers as listed in Schedule I of the Purchase Agreement (as defined
below) (the "INITIAL PURCHASERS").
This Agreement is made pursuant to the purchase agreement
dated May 13, 1999, among the Company, the Guarantors and the Initial Purchasers
(the "PURCHASE AGREEMENT"), which provides for the sale by the Company to the
Initial Purchasers of $600,000,000 aggregate principal amount of the Company's
7.96% Senior Notes due 2005 (the "2005 NOTES") and $800,000,000 aggregate
principal amount of the Company's 8.11% Senior Notes due 2009 (the "2009 NOTES",
and together with the 2005 Notes, the "NOTES") to be guaranteed on a joint and
several basis by the Guarantors. The Notes and the guarantees of the Guarantors
(the "GUARANTEES" and, together with the Notes, the "SECURITIES")) are to be
issued pursuant to the provisions of an Indenture dated as of May 15, 1999 (the
"INDENTURE") among the Company, the Guarantors and The Bank of New York, as
trustee (the "TRUSTEE"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect permitted transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"CLOSING DATE" shall mean the Closing Date as defined in the
Purchase Agreement.
"COMMISSION" shall mean the Securities and Exchange
Commission.
"COMPANY" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"EXCHANGE OFFER" shall mean the exchange offer by the Company
and the Guarantors of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof.
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"EXCHANGE OFFER REGISTRATION" shall mean a registration under
the Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean securities issued by the
Company and the Guarantors under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the date of
issuance, and (ii) the Exchange Securities will not contain restrictions on
transfer) and to be offered to Holders of Securities in exchange for Securities
pursuant to the Exchange Offer.
"GUARANTORS" shall have the meaning set forth in the preamble
and shall also include each Guarantor's successors.
"HOLDER" shall mean the Initial Purchasers, for so long as
they own any Registrable Securities, and each of their successors, assigns and
direct and indirect permitted transferees who become registered owners of
Registrable Securities under the Indenture; provided that for purposes of
Sections 4 and 5 of this Agreement, the term "Holder" shall include
Participating Broker-Dealers (as defined in Section 4(a)).
"INDENTURE" shall have the meaning set forth in the preamble
and shall include the Indenture as the same may be amended from time to time in
accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the
preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities.
"PERSON" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to such prospectus, and in each case
including all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
"REGISTRABLE SECURITIES" shall mean the Securities; provided,
however, that any Securities shall cease to be Registrable Securities when:
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(i) such Securities have been exchanged for Exchange
Securities in the Exchange Offer;
(ii) a Registration Statement with respect to such
Securities shall have been declared effective under the Securities Act
and such Securities shall have been disposed of pursuant to such
Registration Statement;
(iii) such Securities have been distributed to the public
pursuant to Rule 144 under the Securities Act (or any similar provision
then in force) or are eligible for sale without restriction pursuant to
Rule 144(k) (or any similar provision then in force, but not Rule 144A)
under the Securities Act; or
(iv) such Securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance by the Company and the Guarantors with
this Agreement, including without limitation:
(i) all Commission, stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees;
(ii) all fees and expenses incurred in connection with
compliance with state securities or Blue Sky laws (including reasonable
fees and disbursements of counsel to any underwriters or Holders in
connection with Blue Sky qualification of any of the Exchange
Securities or Registrable Securities, if required pursuant to this
Agreement);
(iii) all expenses of any Persons engaged by the Company or
the Guarantors in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement;
(iv) all rating agency fees;
(v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws;
(vi) the reasonable fees and disbursements of the Trustee
and its counsel;
(vii) the fees and disbursements of counsel to the Company
and the Guarantors and, in the case of a Shelf Registration Statement,
the reasonable fees and disbursements of one counsel to the Holders
(which counsel shall be selected by the Majority Holders and which
counsel may also be counsel to the Initial Purchasers); and
(viii) the fees and disbursements of the independent public
accountants engaged by the Company and the Guarantors, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, but excluding fees and
expenses of counsel to the underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions
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and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement
of the Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended from time to time.
"SHELF REGISTRATION" shall mean a Registration effected
pursuant to Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the Registrable
Securities (but no other securities unless approved by the Holders whose
Registrable Securities are covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the Commission, and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the
Securities under the Indenture.
"UNDERWRITER" shall have the meaning set forth in Section 3
hereof.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall
mean a registration in which Registrable Securities are sold to an Underwriter
for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent
not prohibited by any applicable law or applicable interpretation of the Staff
of the Commission, the Company and the Guarantors shall use their reasonable
best efforts to cause to be filed, within 120 days of the Closing Date, an
Exchange Offer Registration Statement covering the offer by the Company and the
Guarantors to the Holders to exchange all of the Registrable Securities for
Exchange Securities, to have the Exchange Offer Registration Statement declared
effective within 210 days of the Closing Date and to have such Registration
Statement remain effective until the closing of the Exchange Offer. The Company
and the Guarantors shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the Commission and
use their reasonable best efforts to consummate the Exchange Offer within 30
business days of the effective date of the Exchange Offer Registration
Statement. The Company and the Guarantors shall commence the Exchange Offer by
mailing the related Exchange Offer Prospectus and accompanying documents to each
Holder stating, in addition to such other disclosures as are required by
applicable law:
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(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 business days from the date such notice is
mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice
prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last Exchange
Date, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
his election to have such Securities exchanged.
As soon as practicable after the last Exchange Date, the
Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or portions
thereof tendered and not validly withdrawn pursuant to the Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by the Company and the Guarantors and issue, and cause the
Trustee to promptly authenticate and mail to each Holder, an Exchange
Security equal in principal amount to the principal amount of the
Registrable Securities surrendered by such Holder.
The Company and the Guarantors shall use their reasonable best
efforts to complete the Exchange Offer as provided above and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the Staff of the Commission. The Company shall inform the Initial Purchasers
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the number of Registrable
Securities in the Exchange Offer.
For a period of 90 days after the last Exchange Date, the
Company and the Guarantors shall also use their reasonable best efforts to make
available a prospectus meeting the requirements of the Securities Act which may
be the Prospectus contained in the Exchange Offer
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Registration Statement or the Prospectus contained in a Shelf Registration
Statement, as such Registration Statements may be amended or supplemented from
time to time, to Holders which are broker-dealers (and which identify themselves
as such) in connection with resales of Exchange Securities received in exchange
for Registrable Securities, where such Registrable Securities were acquired by
such broker-dealers for their own account as a result of market-making or other
trading activities; provided that each Holder which is a broker-dealer agrees
that, upon receipt of notice from the Company of the occurrence of any event
which makes any statement in the Prospectus untrue in any material respect or
which requires the making of any changes in the Prospectus in order to make the
statements therein not misleading (which notice the Company agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such broker-dealer. If the Company shall give any
such notice to suspend the use of the Prospectus, it shall extend the 90-day
period referred to above by the number of days during the period from and
including the date of the giving of such notice to and including the date when
broker-dealers shall have received copies of the supplemented or amended
Prospectus necessary to permit resales of the Exchange Securities.
In the event that, at the last Exchange Date, any of the
Initial Purchasers shall not have sold all of the Registrable Securities
initially purchased from the Company and the Guarantors by such Initial
Purchaser to unaffiliated investors, upon such Initial Purchaser's written
request (made within 10 days after the last Exchange Date), the Company and the
Guarantors will use their reasonable best efforts to file promptly, or if so
requested by any Initial Purchaser, on a later date (which date shall not exceed
the date that is six months after the Exchange Date), a Shelf Registration
Statement or a post-effective amendment to the Exchange Offer Registration
Statement, if acceptable to the Commission, to register all such Registrable
Securities for all such Initial Purchasers. The Company and the Guarantors will
keep such Shelf Registration Statement or other Registration Statement effective
and make available to such Initial Purchasers a Prospectus meeting of the
Securities Act for a period of 120 days, provided that each such Initial
Purchaser agrees that, upon receipt of notice from the Company of the happening
of any event which makes any statement in the Prospectus untrue in any material
respect or which requires the making of any changes in the Prospectus in order
to make the statements therein not materially misleading (which notice the
Company agrees to deliver promptly to such Initial Purchasers), such Initial
Purchaser will suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented Prospectus to such Initial
Purchaser. If the Company shall give any such notice to suspend the use of the
Prospectus, it shall extend the 120-day period referred to above by the number
of days during the period from and including the date of the giving of such
notice to and including the date when such Initial Purchasers shall have
received copies of the supplemented or amended Prospectus necessary to permit
sales of their Securities.
(b) In the event that:
(i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may
not be consummated as soon as practicable after the last Exchange Date
because it would violate applicable law or the applicable
interpretations of the Staff of the Commission;
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(ii) the Exchange Offer is not for any other reason
consummated within 250 days of the Closing Date; or
(iii) the Exchange Offer has been completed and in the written
opinion of counsel to the Initial Purchasers (a copy of which is
furnished to the Company) a Registration Statement must be filed and a
Prospectus must be delivered by the Initial Purchasers in connection
with any offering or sale of Registrable Securities,
the Company and the Guarantors shall use their reasonable best efforts to cause
to be filed as soon as practicable after such determination, date or notice of
such opinion of counsel is given to the Company and the Guarantors, as the case
may be, a Shelf Registration Statement providing for the sale by the Holders of
all of the Registrable Securities and to have such Shelf Registration Statement
declared effective by the Commission. In the event the Company and the
Guarantors are required to file a Shelf Registration Statement solely as a
result of the matters referred to in clause (iii) of the preceding sentence, the
Company and the Guarantors shall use their reasonable best efforts to file and
have declared effective by the Commission both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
eligible to be included therein and a Shelf Registration Statement (which may be
a combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Securities held by
the Initial Purchasers after completion of the Exchange Offer. The Company and
the Guarantors agree to use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the expiration of the period
referred to in Rule 144(k) with respect to the Registrable Securities or such
shorter period that will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company and the Guarantors further agree to
supplement or amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used by the
Company and the Guarantors for such Shelf Registration Statement or by the
Securities Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested by a Holder with respect to information
relating to such Holder, and to use its reasonable best efforts to cause any
such amendment to become effective and such Shelf Registration Statement to
become usable as soon as thereafter practicable. The Company agrees to furnish
to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the Commission.
(c) The Company and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) and
Section 2(b). Each Holder shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the Commission; provided, however, that, if, after it has been
declared effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume.
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If the Company or the Guarantors fail to comply with the above
provisions, additional interest (the "Additional Interest") shall be assessed as
follows:
(i) If neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement, as applicable, is filed within 120
days following the Closing Date, then commencing on the 121st day after
the Closing Date, Additional Interest shall be accrued on the
Registrable Securities affected thereby over and above the accrued
interest at a rate of 0.25% per annum; or
(ii) If an Exchange Offer Registration Statement or Shelf
Registration Statement is filed pursuant to (i) above and is not
declared effective within 210 days following the Closing Date, then
commencing on the 211th day after the Closing Date, Additional Interest
shall be accrued on the Registrable Securities affected thereby over
and above the accrued interest at a rate of 0.25% per annum; or
(iii) If either (A) the Company and the Guarantors have not
exchanged Exchange Securities for all Securities validly tendered in
accordance with the terms of the Exchange Offer on or prior to 30
business days after the date on which the Exchange Offer Registration
Statement was declared effective, or (B) if applicable, the Shelf
Registration Statement has been declared effective but such Shelf
Registration Statement ceases to be effective at any time prior to the
expiration of the period referred to in Rule 144(k), then Additional
Interest shall be accrued on the Registrable Securities affected
thereby over and above the accrued interest at a rate of 0.25% per
annum immediately following the (x) 31st business day after such
effective date, in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the case of (B) above:
provided, however, that the Additional Interest rate on the Registrable
Securities may in no event exceed 0.25% per annum; and, provided, further, that
Additional Interest on the Registrable Securities as a result of such clause
(i), (ii) or (iii) shall cease to accrue upon:
(1) the filing of the Exchange Offer Registration Statement or
Shelf Registration Statement (in the case of (i) above);
(2) the effectiveness of the Exchange Offer Registration
Statement or Shelf Registration Statement (in the case of (ii) above);
or
(3) the exchange of Exchange Securities for all Securities
tendered or upon the effectiveness of the Shelf Registration Statement
which had ceased to remain effective prior to the expiration of the
period referred to in Rule 144(k) (in the case of (iii) above),.
Any amounts of Additional Interest due pursuant to clauses
(i), (ii) or (iii) above will be payable in cash, on the same original payment
dates of the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the Registrable Securities, multiplied by a fraction, the numerator of which is
the number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
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Additional Interest shall not apply in the event that a Shelf
Registration Statement is required to be filed solely as a result of the matters
referred to in clause (iii) of Section 2(b) and shall not apply to Securities
that cease to be Registrable Securities.
(e) The accrual and payment of Additional Interest, as set
forth in Section 2(d), shall be the sole and exclusive remedy of the Holders and
the Initial Purchasers against the Company and the Guarantors for the breach by
the Company or the Guarantors of any of their obligations under Section 2.
3. Registration Procedures. In connection with the obligations
of the Company and the Guarantors with respect to the Registration Statements
pursuant to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors
shall:
(a) prepare and file with the Commission a Registration
Statement on the appropriate form under the Securities Act, which form
(x) shall be selected by the Company and the Guarantors, (y) shall, in
the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) shall
comply as to form in all material respects with the requirements of the
applicable form and include (or incorporate by reference) all financial
statements required by the Commission to be filed therewith, and use is
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act and to use their
respective best efforts keep each Prospectus current during the period
described under Section 4(3) and Rule 174 under the Securities Act that
is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities participating therein, to counsel to
the Initial Purchasers, to counsel to the Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder or Underwriter may reasonably
request, in order to facilitate the public sale or other disposition of
the Registrable Securities; and the Company and the Guarantors consent
to the use of such Prospectus and any amendment or supplement thereto
in accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or qualify
the Registrable Securities under all applicable state securities or
"Blue Sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement shall reasonably request
in writing by the time the applicable Registration Statement is
declared effective
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by the Commission, to cooperate with such Holders in connection with
any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder, provided, however, that
neither the Company nor the Guarantors shall be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (ii) file any general consent to service of
process or (iii) subject itself to taxation in any such jurisdiction
if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities participating therein, counsel to the Holders
and counsel to the Initial Purchasers promptly and, if requested by any
such Holder or counsel, confirm in writing:
(i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed
and becomes effective;
(ii) of any request by the Commission or any state
securities authority for amendments and supplements to a
Registration Statement and Prospectus or for additional
information after the Registration Statement has become
effective;
(iii) of the issuance by the Commission or any state
securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose;
(iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties
of the Company and the Guarantors contained in any
underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to
be true and correct in all material respects or if the Company
or the Guarantors receive any notification with respect to the
suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation of any
proceeding for such purpose;
(v) of the happening of any event during the period a
Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires
the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not
materially misleading; and
(vi) of any determination by the Company or the
Guarantors that a post- effective amendment to a
Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment and provide immediate notice to each
Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities participating therein, without charge,
at least one conformed copy of each
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Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders may reasonably request at least one
business day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e) hereof, use its reasonable
best efforts to prepare and file with the Commission a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
and the Guarantors agree to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an
event, and the Holders hereby agree to suspend use of the Prospectus
until the Company and the Guarantors has amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any Shelf Registration Statement, any
Prospectus, any amendment to a Shelf Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Shelf Registration Statement or a
Prospectus after initial filing of a Shelf Registration Statement,
provide copies of such document to the Holders participating therein
and their counsel and make such of the representatives of the Company
and the Guarantors as shall be reasonably requested by the Holders
participating therein or their counsel available for discussion of such
document, and shall not at any time file or make any amendment to the
Shelf Registration Statement, any Prospectus or any amendment of or
supplement to a Shelf Registration Statement or a Prospectus or any
document which is to be incorporated by reference into a Shelf
Registration Statement or a Prospectus, of which the Holders
participating therein and their counsel shall not have previously been
advised and furnished a copy, except for any amendment or supplement or
document (a copy of which has been previously furnished to the Holders
participating therein and their counsel) which counsel to the Company
and the Guarantors shall advise the Company and the Guarantors is
required in order to comply with applicable law;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of the applicable Registration Statement;
(l) cause the Indenture to remain qualified under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), in
connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, cooperate with the
13
Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to remain so qualified in accordance with
the terms of the Trust Indenture Act and execute, and use its
reasonable best efforts to cause the Trustee to execute, all documents
as may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable the
Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities participating therein, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
attorneys and accountants designated by the Majority Holders, at
reasonable times and in a reasonable manner, all material financial and
other records, pertinent documents and properties of the Company and
the Guarantors, and use their respective reasonable best efforts to
cause the respective officers, directors and employees of the Company
and the Guarantors to supply all information reasonably requested by
any such representative, Underwriter, attorney or accountant in
connection with a Shelf Registration Statement; provided, however, that
each such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by the Company and the Guarantors as being confidential,
until such time as:
(i) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration
statement or otherwise but excluding any matter that becomes
public by virtue of the breach by any Holder of its
obligations to maintain the confidentiality of any such
information);
(ii) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only
after such person shall have given the Company and the
Guarantors prompt prior written notice of such requirement and
the opportunity to contest the same or seek an appropriate
protective order); or
(iii) such information is required to be set forth in suc
Shelf Registration Statement or the Prospectus included
therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such Prospectus in
order that such Shelf Registration Statement, Prospectus,
amendment or supplement, as the case may be, does not contain
an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(n) in the case of a Shelf Registration, use its reasonable
best efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which
securities issued by the Company and the Guarantors of the same class
are then listed if requested by the Majority Holders, to the extent
such Registrable Securities satisfy applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Shelf Registration Statement, use its best
efforts to:
14
(i) incorporate in a Prospectus supplement or
post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included
therein; and
(ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as the
Company or the Guarantors have received notification of the
matters to be incorporated in such filing;
provided that neither the Company nor any Guarantor shall be required
to take any action under this paragraph (o) that is not, in the opinion
of counsel to the Company, legally required; provided, however, that
such opinion shall be in writing and delivered to the Holder; and
(p) in the case of a Shelf Registration, enter into such
customary agreements and take all such other reasonable actions in
connection therewith (including those reasonably requested by the
Holders of a majority of the Registrable Securities being sold) in
order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and
in such connection:
(i) to the extent possible, make such representations
and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the
Company and its subsidiaries, the Shelf Registration
Statement, Prospectus and documents incorporated by reference
or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings of this type and
confirm the same if and when requested;
(ii) use its reasonable best efforts to obtain opinions
of counsel to the Company and the Guarantors (which counsel
and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters
and their respective counsel) addressed to each selling Holder
and Underwriter of Registrable Securities, covering the
matters customarily covered in opinions requested in
underwritten offerings of this type;
(iii) use its reasonable best efforts to obtain "cold
comfort" letters from the independent certified public
accountants of the Company and the Guarantors (and, if
necessary, any other certified public accountant of any
subsidiary of the Company, or of any business acquired by the
Company or the Guarantors for which financial statements and
financial data are or are required to be included in the Shelf
Registration Statement) addressed to each selling Holder and
Underwriter of Registrable Securities, such letters to be in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
underwritten offerings of this type; provided that any such
accountant receives appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards Nos.
71 or 72; and
(iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in principal
amount of the Registrable Securities being sold or the
Underwriters, and which are customarily delivered in
underwritten
15
offerings, to evidence the continued validity of the
representations and warranties of the Company and the
Guarantors made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Company and
the Guarantors may require each Holder of Registrable Securities to furnish to
the Company and the Guarantors such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company or the Guarantors may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company or the Guarantors of
the happening of any event of the kind described in Section 3(e)(v) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(i) hereof, and,
if so directed by the Company or the Guarantors, such Holder will deliver to the
Company or the Guarantors (at their expense) all copies in its possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice and shall not use such Shelf Registration Statement or Prospectus until
amended or supplemented. If the Company or the Guarantors shall give any such
notice to suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company and the Guarantors shall extend the period
during which the Shelf Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions. The Company or the Guarantors may give
any such notice only twice during any 365 day period and any such suspensions
may not exceed 30 days for each suspension and there may not be more than two
suspensions in effect during any 365 day period.
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering, subject to the consent of the
Company (which shall not be unreasonably withheld or delayed) and such Holders
shall be responsible for all underwriting commissions and discounts.
4. Participation of Broker-Dealers in Exchange Offer. (a) The
Staff of the Commission has taken the position that any broker-dealer that
receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer"), may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the
Staff's position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating
16
Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker- Dealers or specifying the amount of Exchange Securities
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligation under the Securities Act in
connection with resales of Exchange Securities for their own accounts, so long
as the Prospectus otherwise meets the requirements of the Securities Act.
5. Indemnification and Contribution.
(a) Each of the Company and the Guarantors jointly and
severally agrees to indemnify and hold harmless the Initial Purchasers, each
Holder and each Person, if any, who controls any Initial Purchaser or any Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, or is under common control with, or is controlled by, any
Initial Purchaser or any Holder, from and against all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred by the Initial Purchaser, any Holder or any such controlling
or affiliated Person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which Exchange Securities or Registrable Securities were registered
under the Securities Act, including all documents incorporated therein by
reference, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company or the Guarantors shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Initial Purchasers or any Holder furnished to
the Company in writing by the Initial Purchasers or any selling Holder expressly
for use therein. In connection with any Underwritten Offering permitted by
Section 3, the Company and the Guarantors will also jointly and severally
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors, the Initial Purchasers
and the other selling Holders, and each of their respective directors, officers
who sign the Registration Statement and each Person, if any, who controls the
Company or the Guarantors, any Initial Purchaser and any other selling Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to the Initial Purchasers and the Holders, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either
17
Section 5(a) or 5(b), such Person (the "INDEMNIFIED PARTY") shall promptly
notify the Person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, the indemnifying
party shall be entitled to participate in such proceeding and, to the extent
that it so elects, jointly with any other similarly notified indemnifying party,
to assume the defense thereof, subject to the right of the indemnified party to
be separately represented and to direct its own defense if the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and the indemnified party has been
advised by counsel that representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless:
(i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel; or
(ii) the named parties to any such proceeding (including any
impeded parties) include both the indemnifying party and the
indemnified party and the indemnified party has been advised by counsel
that representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for:
(A) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Initial Purchasers, any Holders
and all Persons, if any, who control any Initial Purchaser or any
Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act; and
(b) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, the Guarantors, their
directors, their officers who sign the Registration Statement and each
Person, if any, who controls the Company or the Guarantors within the
meaning of either such Section, and
that all such fees and expenses shall be reimbursed, upon reasonable request, as
they are incurred. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the 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, effect any
settlement of any pending or threatened proceeding in respect of which such
indemnified party is a party and 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.
18
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company, the Guarantors and the Holders 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
information supplied by the Company, the Guarantors or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 5(d) are several in
proportion to the respective principal amount of Registrable Securities of any
such Holder that were registered pursuant to a Registration Statement.
(e) The Company, the Guarantors and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
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. The remedies provided for in
this Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of:
(i) any termination of this Agreement;
(ii) any investigation made by or on behalf of the Initial
Purchasers, any Holder or any Person controlling any Initial Purchaser
or any Holder, or by or on behalf of the Company, the Guarantors, their
officers or directors or any Person controlling the Company or the
Guarantors;
(iii) acceptance of any of the Exchange Securities; and
(iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
19
6. Miscellaneous. (a) No Inconsistent Agreements. Neither
the Company nor the Guarantors have entered into, and on or after the date of
this Agreement will not enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the Holder
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of other issued and outstanding securities of the
Company or the Guarantors under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and the Guarantors have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company and the Guarantors by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase Agreement, and (ii) if
to the Company or the Guarantors, initially at the Company's address set forth
in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof. The
Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to the Company or the Guarantors with respect to any
failure by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
20
(e) Purchases and Sales of Securities. The Company and the
Guarantors shall not, and shall use their best efforts to cause their affiliates
(as defined in Rule 405 under the Securities Act) not to, purchase and then
resell or otherwise transfer any Securities.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterpart, 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
21
(j) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President,
General Counsel and Secretary
▇▇▇▇ OPERATIONS CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Secretary
and General Counsel
▇▇▇▇ CORPORATION AUTOMOTIVE
HOLDINGS
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
Confirmed and accepted on behalf of
the Initial Purchasers as of the date
first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
Title: Vice President