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EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 30, 1997
by and among
▇▇▇▇▇ WHEELS INTERNATIONAL, INC.,
THE GUARANTORS
named herein
and
THE INITIAL PURCHASERS
named herein
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TABLE OF CONTENTS
Page
[S] [C]
Definitions........................................ 1
Exchange Offer..................................... 5
Shelf Registration................................. 9
Additional Interest................................ 10
Registration Procedures............................ 12
Registration Expenses.............................. 23
Indemnification.................................... 25
Rules 144 and 144A................................. 29
Underwritten Registrations......................... 29
Miscellaneous...................................... 30
(a) Remedies...................................... 30
(b) Enforcement................................... 30
(c) No Inconsistent Agreements.................... 30
(d) Adjustments Affecting Registrable Notes....... 30
(e) Amendments and Waivers........................ 30
(f) Notices....................................... 31
(g) Successors and Assigns........................ 32
(h) Counterparts.................................. 32
(i) Headings...................................... 32
(j) GOVERNING LAW................................. 32
(k) Severability.................................. 32
(l) Entire Agreement.............................. 32
(m) Joint and Several Obligations................. 32
(n) Notes Held by the Company or their Affiliates. 33
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REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of June
30, 1997, by and among ▇▇▇▇▇ WHEELS INTERNATIONAL, INC., a Delaware
corporation (the "Company"), the Guarantors as listed on the
signature pages hereto (the "Guarantors"), and CIBC WOOD GUNDY
SECURITIES CORP. ("CIBC"), ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED, BEAR, ▇▇▇▇▇▇▇ & CO. INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INC. and
SALOMON BROTHERS INC, as initial purchasers (the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 19, 1997 among the Company, the
Guarantors and the Initial Purchasers (the "Purchase Agreement")
relating to the sale by the Company to the Initial Purchasers of
$250,000,000 aggregate principal amount of the Company's 9 1/8%
Senior Subordinated Notes due 2007 (the "Notes") and the guarantee of
the Notes by the Guarantors (the "Guarantees"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Guarantors have agreed to provide the registration
rights set forth in this Agreement to the Initial Purchasers and
their direct and indirect transferees and assigns. The execution and
delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
Advice: See Section 5.
Applicable Period: See Section 2(b).
Closing: See the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 120th day after the Issue Date.
Effectiveness Period: See Section 3(a).
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Event Date: See Section 4(c).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 60th day after the Issue Date.
Guarantees: See the introductory paragraph of this Agreement.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of June 30, 1997, among the
Company, the Guarantors and The Bank of New York, as trustee,
pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes are sold to
the Initial Purchasers pursuant to the Purchase Agreement.
NASD: See Section 5(t).
Notes: See the introductory paragraph to this Agreement.
Participant: See Section 7(a).
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Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or
political subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities
Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 5(o).
Registrable Notes: The Notes upon original issuance of the
Notes and at all times subsequent thereto and, if issued, the
Private Exchange Notes, until in the case of any such Notes or any
such Private Exchange Notes, as the case may be, (i) a Registration
Statement covering such Notes or such Private Exchange Notes has been
declared effective by the SEC and such Notes or such Private Exchange
Notes, as the case may be, have been exchanged and/or disposed of in
accordance with such effective Registration Statement, (ii) such
Notes or such Private Exchange Notes, as the case may be, are sold in
compliance with Rule 144, (iii) in the case of any Note, such Note
has been exchanged for an Exchange Note or Exchange Notes pursuant to
an Exchange Offer or (iv) such Notes or such Private Exchange Notes,
as the case may be, cease to be outstanding.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of the
Company or the Guarantors, including, but not limited
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to, the Exchange Registration Statement, which covers any of the
Registrable Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule
(other than Rule 144A) or regulation hereafter adopted by the SEC
providing for offers and sales of securities made in compliance
therewith resulting in offers and sales by subsequent holders that
are not affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule
(other than Rule 144) or regulation hereafter adopted by the SEC
providing for offers and sales of securities made in compliance
therewith resulting in offers and sales by subsequent holders that
are not affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private
Exchange Notes (if any).
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Underwritten registration or underwritten offering: A
registration under the Securities Act in which securities of the
Company are sold to an underwriter(s) for reoffering to the public.
2. Exchange Offer
(a) Each of the Company and the Guarantors jointly and severally
agrees to use its best efforts to file with the SEC as soon as
practicable after the Closing, but in no event later than the Filing
Date, documents pertaining to an offer to exchange (the "Exchange
Offer") any and all of the Registrable Notes for a like aggregate
principal amount of debt securities of the Company, guaranteed by the
Guarantors, which are identical in all material respects to the Notes
(the "Exchange Notes") (and which are entitled to the benefits of the
Indenture or a trust indenture which is substantially identical to
the Indenture (other than such changes to the Indenture or any such
identical trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified
under the TIA), except that the Exchange Notes shall have been
registered pursuant to an effective registration statement under the
Securities Act and will not contain terms with respect to transfer
restrictions. The documents pertaining to the Exchange Offer will be
filed under the Securities Act on the appropriate form (the "Exchange
Registration Statement") and the Exchange Offer will comply with all
applicable tender offer rules and regulations under the Exchange
Act. Each of the Company and the Guarantors jointly and severally
agrees to use its best efforts to (x) cause the Exchange Registration
Statement to become effective under the Securities Act on or before
the Effectiveness Date; (y) keep the Exchange Offer open for at
least 30 days (or longer if required by applicable law) after
the date that notice of the Exchange Offer is mailed to Holders; and
(z) consummate the Exchange Offer on or prior to the 150th day (or,
in the event of any extension of the Exchange Offer required by
applicable law, the earliest day following any such extension)
following the Issue Date. Each Holder who participates in the
Exchange Offer will be required to represent that any Exchange Notes
received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer
such Holder will have no arrangement or understanding with any Person
to participate in the distribution of the Exchange Notes in violation
of the provisions of the Securities Act, that such Holder is not an
affiliate of any of the Company or the Guarantors within the meaning
of Rule 405 promulgated under the Securities Act or if
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it is such an affiliate, that it will comply with the
registration and prospectus delivery requirements of the Securities
Act, to the extent applicable and that is not acting on behalf of any
Person who could not truthfully make the foregoing representations.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Notes that are
Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Company and the Guarantors shall have no
further obligation to register Registrable Notes (other than Private
Exchange Notes and Exchange Notes held by Participating
Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Company and the Guarantors shall include within the
Prospectus contained in the Exchange Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 promulgated under the
Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the staff of
the SEC or such positions or policies, in the reasonable judgment of
the Initial Purchasers, represent the prevailing views of the staff
of the SEC. Such "Plan of Distribution" section shall also allow the
use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including all
Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange
Notes.
Each of the Company and the Guarantors shall use its best
efforts to keep the Exchange Registration Statement effective and to
amend and supplement the Prospectus contained therein in order to
permit such Prospectus to be lawfully delivered 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
such period shall not exceed 180 days (or such longer period if
extended pursuant to the last paragraph of Section 5) (the
"Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are
reasonably likely to be determined to have, the
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status as an unsold allotment in the initial distribution, the
Company and the Guarantors upon the request of such Initial
Purchasers shall, simultaneously with the delivery of the Exchange
Notes in the Exchange Offer, issue and deliver to such Initial
Purchasers, in exchange (the "Private Exchange") for the Notes held
by such Initial Purchasers, a like principal amount of debt
securities of the Company guaranteed by the Guarantors, that are
identical in all material respects to the Exchange Notes (the
"Private Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes) except for the placement of a
restrictive legend on the Private Exchange Notes. If possible, the
Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes. Interest on the Exchange Notes and Private Exchange
Notes will accrue from (A) the later of (i) the last interest payment
date on which interest was paid on the Notes surrendered in exchange
therefor or (ii) if the Notes are surrendered for exchange on a date
in a period which includes the record date for an interest payment
date to occur on or after the date of such exchange and as to which
interest will be paid, the date of such interest payment date or (B)
if no interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
and
(iii) 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 Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Company and the
Guarantors shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
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(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, 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 Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture substantially identical
to the Indenture, which in either event will provide that (1) the
Exchange Notes will not be subject to the transfer restrictions set
forth in the Indenture and (2) the Private Exchange Notes will be
subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes,
the Private Exchange Notes and the Notes will have the right to vote
and give consents together on all matters presented to such holders
for votes or consents as one class and that neither the Exchange
Notes, the Private Exchange Notes nor the Notes will have the right
to vote or consent as a separate class on any matter.
(c) If (1) prior to the consummation of the Exchange Offer, the
Company and the Guarantors or Holders of at least a majority in
aggregate principal amount of the Registrable Notes reasonably
determine in good faith that (i) the Exchange Notes would not, upon
receipt, be freely transferable by such Holders which are not
affiliates (within the meaning of the Securities Act) of the Company
or the Guarantors without restriction under the Securities Act and
without restrictions under applicable state securities laws, (ii) the
interests of the Holders under this Agreement would be adversely
affected by the consummation of the Exchange Offer or (iii) after
conferring with counsel, the SEC is unlikely to permit the
commencement of the Exchange Offer prior to the Effectiveness Date,
(2) subsequent to the consummation of the Private Exchange, any
holder of the Private Exchange Notes so requests or (3) the Exchange
Offer is commenced and not consummated within 150 days of the Issue
Date, then the Company and the Guarantors shall promptly deliver to
the Holders and the Trustee written notice thereof (the "Shelf
Notice") and shall file an Initial Shelf Registration pursuant to
Section 3. Following the delivery of a Shelf Notice to the Holders
of Registrable Notes (in the circumstances contemplated by clauses
(1) and (3) of the preceding sentence), the Company and the
Guarantors shall not have any further obligation to conduct the
Exchange Offer or the Private Exchange under this Section 2.
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3. Shelf Registration
If a Shelf Notice is required to be delivered as contemplated by
Section 2(c), then:
(a) Initial Shelf Registration. The Company and the Guarantors
shall prepare and file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415
covering all of the then existing Registrable Notes (the "Initial
Shelf Registration"). If the Company and the Guarantors shall have
not yet filed an Exchange Registration Statement, each of the Company
and the Guarantors shall use its best efforts to file with the SEC
the Initial Shelf Registration on or prior to the Filing Date. In
any other instance, each of the Company and the Guarantors shall use
its best efforts to file with the SEC the Initial Shelf Registration
as promptly as practicable following delivery of the Shelf Notice.
The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable
Notes for resale by such Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten
offerings). The Company and the Guarantors shall not permit any
securities other than the Registrable Notes to be included in the
Initial Shelf Registration or any Subsequent Shelf Registration.
Each of the Company and the Guarantors shall use its best efforts to
cause the Initial Shelf Registration to be declared effective under
the Securities Act, if an Exchange Registration Statement has not yet
been declared effective, on or prior to the Effectiveness Date, or,
in any other instance, as soon as practicable after the filing
thereof and in no event later than 90 days following delivery of the
Shelf Notice, and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date which is 24 months
from the date on which such Initial Shelf Registration is declared
effective (subject to extension pursuant to the last paragraph of
Section 5 hereof), or such shorter period ending when all Registrable
Notes covered by the Initial Shelf Registration have been sold in the
manner set forth and as contemplated in the Initial Shelf
Registration (the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time prior to the termination of the
Effectiveness Period, each of the Company and the Guarantors shall
use its best efforts to promptly restore the effectiveness thereof,
and in any event shall, within 45 days of such cessation of
effectiveness, amend the Shelf ▇▇▇▇▇▇▇▇-
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tion in a manner reasonably expected to restore the
effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the then existing
Registrable Notes (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, each of the Company and the
Guarantors shall use its best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable after
such filing and to keep such Registration Statement continuously
effective during the Effectiveness Period. As used herein the term
"Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company and the Guarantors
shall promptly supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration or if required by
the Securities Act. The Company and the Guarantors shall promptly
supplement and amend the Shelf Registration if any such supplement or
amendment is reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement or by any underwriter(s) of such Registrable
Notes.
4. Additional Interest
(a) The Company and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Company fails
to fulfill its obligations under Section 2 or Section 3 hereof and
that it would not be feasible to ascertain the extent of such damages
with precision. Accordingly, the Company agrees to pay additional
interest on the Notes ("Additional Interest") under the circumstances
and to the extent set forth below:
(i) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been declared effective on or prior to
the Effectiveness Date;
(iii) if an Initial Shelf Registration required by Section
2(c)(2) has not been filed on or prior to the date 45 days after
delivery of the Shelf Notice;
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(iv) if an Initial Shelf Registration required by Section
2(c)(2) has not been declared effective on or prior to the date 90
days after the delivery of the Shelf Notice; and/or
(v) if (A) the Company has not exchanged the Exchange
Notes for all Notes validly tendered in accordance with the terms of
the Exchange Offer on or prior to the date 150 days after the Issue
Date or (B) the Exchange Registration Statement ceases to be
effective at any time prior to the time that the Exchange Offer is
consummated or (C) if applicable, the Shelf Registration has been
declared effective and such Shelf Registration ceases to be effective
at any time prior to the termination of the Effectiveness Period;
(each such event referred to in clauses (i) through (v) above is a
"Registration Default"). The sole remedy available to Holders of the
Notes for a Registration Default will be the accrual of Additional
Interest as follows: the per annum interest rate on the Notes will
increase by .50% during the first 90-day period following the occurrence
of a Registration Default and until it is waived or cured; and the per
annum interest rate will increase by an additional .25% for each
subsequent 90-day period during which the Registration Default remains
uncured, up to a maximum additional interest rate of 2.0% per annum,
provided, however, that only Holders of Private Exchange Notes shall be
entitled to receive Additional Interest as a result of a Registration
Default pursuant to clause (iii) or (iv), provided, further, that (1) upon
the filing of the Exchange Registration Statement or the Initial Shelf
Registration (in the case of (i) above), (2) upon the effectiveness of the
Exchange Registration Statement or a Shelf Registration (in the case of
(ii) above), (3) upon the filing of the Shelf Registration (in the case of
(iii) above), (4) upon the effectiveness of the Shelf Registration (in the
case of (iv) above), or (5) upon the exchange of Exchange Notes for all
Notes tendered or the effectiveness of a Shelf Registration (in the case
of (v)(A) above), or upon the subsequent effectiveness of the Exchange
Registration Statement which had ceased to remain effective or the
effectiveness of a Shelf Registration (in the case of (v)(B) above), or
upon the subsequent effectiveness of the Shelf Registration which had
ceased to remain effective (in the case of (v)(C) above), Additional
Interest on the Notes as a result of such clause (i), (ii), (iii), (iv) or
(v) (or the relevant subclause thereof), as the case may be, shall cease
to accrue and the interest rate on the Notes will revert to the interest
rate originally borne by the Notes.
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(b) Notwithstanding the foregoing, no Additional
Interest will be payable with respect to a Registration Default
described in clause (v)(C) above, if pending a material corporate
transaction, the Company issues a notice that the Registration
Statement, or the prospectus contained therein, is unusable, or such
notice is required under applicable securities laws to be issued by
the Company, and the aggregate number of days in any consecutive
twelve month period for which the Registration Statement, or the
Prospectus contained therein, is unusable pursuant to all such
notices has not exceeded 75 days in the aggregate.
(c) The Company and the Guarantors shall notify the Trustee
within one business day after each and every date on which an event
occurs in respect of which Additional Interest is required to be paid
(an "Event Date"). Any amounts of Additional Interest due pursuant
to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable in
cash semi-annually on each January 15 and July 15 (to the Holders of
record on the January 1 and July 1 immediately preceding such dates),
commencing with the first such date occurring after any such
Additional Interest commences to accrue and until such Registration
Default is cured, by depositing with the Trustee, in trust for the
benefit of such Holders, immediately available funds in sums
sufficient to pay such Additional Interest. The amount of Additional
Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Registrable Notes,
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, in the case of a partial month, the actual number of days
elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Company and the Guarantors
shall effect such registrations to permit the sale of the securities
covered thereby in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company and the
Guarantors shall:
Prepare and file with the SEC, as provided herein, a
Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use their respective best efforts to cause each
such Registration Statement to become effective and remain
effective as pro-
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vided herein, provided that, if (1) such filing is pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, before filing
any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company and the Guarantors shall, if
requested, furnish to and afford the Holders of the Registrable Notes
covered by such Registration Statement and each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed
to be filed (to the extent practicable, at least 5 business days
prior to such filing). The Company and the Guarantors shall not file
any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded
an opportunity to review prior to the filing of such document, if the
Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement, or such
Participating Broker-Dealer, as the case may be, their counsel, or
the managing underwriter(s), if any, reasonably object to information
concerning the Holders or such Participating Broker-Dealer contained
therein.
Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to them with respect
to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and
with respect to the subsequent resale of any securities being sold by
a Participating Broker-Dealer covered by any such Prospectus; the
Company and the Guarantors shall be deemed not to have used their
best efforts to keep a Registration Statement effective during the
Applicable Period if any of them voluntarily takes any action that
would result in
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selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being
able to sell such Registrable Notes or such Exchange Notes during
that period unless such action is required by applicable law or
unless the Company and the Guarantors comply with this Agreement,
including without limitation, the provisions of clauses 5(c)(v) and
(vi) below.
If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), if any, promptly (but in any event within two
business days), and confirm such notice in writing, (i) when a
Prospectus or any prospectus supplement or post-effective amendment
thereto has been filed, and, with respect to a Registration Statement
or any post-effective amendment thereto, when the same has become
effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or
post-effective amendment thereto including financial statements and
schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary
Prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a Prospectus is required by the Securities
Act to be delivered in connection with sales of the Registrable Notes
or resales of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by
Section 5(n) below cease to be true and correct, (iv) of the receipt
by any of the Company or the Guarantors of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Notes or the Exchange Notes to be sold by any Participating Broker-
Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening
of any
17
-15-
event or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making
of any changes in, or amendments or supplements to, such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and (vi) of the Company's or any
Guarantor's reasonable determination that a post-effective amendment
to a Registration Statement would be necessary or appropriate.
If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their best efforts
to prevent the issuance of any order suspending the effectiveness of
a Registration Statement or of any order preventing or suspending the
use of a Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their best
efforts to obtain the withdrawal of any such order as promptly as
practicable.
If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter(s), if any, or the Holders
of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriter(s), if any, or such
Holders reasonably request to be included therein and (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notifi-
18
-16-
cation of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes who so requests and to each such
Participating Broker-Dealer who so requests and to counsel and the
managing underwriter(s), if any, without charge, one conformed copy
of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel, and the managing
underwriter or underwriters, if any, without charge, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
Prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this
Section 5, each of the Company and the Guarantors hereby consents to
the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the managing
underwriter or underwriters or agents, if any, and dealers (if any),
in connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Appli-
19
-17-
cable Period, to use their best efforts to register or qualify,
and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the
managing underwriter or underwriters, if any, and their respective
counsel in connection with the registration or qualification of (or
exemption from such registration or qualification), such Registrable
Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or
underwriters, if any, reasonably request in writing, provided that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Company and the Guarantors agree to cause their counsel
to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h);
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable
Registration Statement; provided that none of the Company or the
Guarantors shall be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject
itself to taxation in any such jurisdiction where it is not otherwise
so subject.
If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with
The Depository Trust Company; and enable such Registrable Notes to be
in such denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request.
Use their best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or
approved by such other governmental agencies
20
-18-
or authorities as may be necessary to enable the seller or
sellers thereof or the managing underwriter or underwriters, if any,
to consummate the disposition of such Registrable Notes, except as
may be required solely as a consequence of the nature of such selling
Holder's business, in which case each of the Company and the
Guarantors will cooperate in all reasonable respects with the filing
of such Registration Statement and the granting of such approvals.
If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by paragraph 5(c)(v) or 5(c)(vi), as promptly
as reasonably practicable prepare and (subject to Section 5(a)) file
with the SEC, at the joint and several expense of each of the Company
and the Guarantors, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any
such Prospectus will 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, in the light of the
circumstances under which they were made, not misleading.
Use their best efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount
of Registrable Notes covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriter or
underwriters, if any.
Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Com-
21
-19-
pany and (ii) provide a CUSIP number for the Registrable Notes
or Exchange Notes, as the case may be.
In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt
securities similar to the Notes and take all such other actions as
are reasonably requested by the managing underwriter(s), if any, in
order to expedite or facilitate the registration or the disposition
of such Registrable Notes, and in such connection, (i) make such
representations and warranties to the managing underwriter or
underwriters on behalf of any underwriters, with respect to the
business of the Company and its subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings
of debt securities similar to the Notes, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Company and
the Guarantors and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or underwriters, addressed
to the managing underwriter or underwriters covering the matters
customarily covered in opinions requested in underwritten offerings
of debt securities similar to the Notes and such other matters as may
be reasonably requested by the managing underwriter(s);
provided, that no such opinion of outside counsel to the Company or
any Guarantor which shall have rendered an opinion in connection with
the sale of the Notes to the Initial Purchasers (the "Original
Opinion") need cover any matter other than matters covered in the
Original Opinion and such other matters concerning the Registration
Statement and the application of the Securities Act to the offer and
sale of the Registration Notes as may be reasonably requested by the
managing underwriter or underwriters; (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other independent certified public
accountants of any subsidiary of any of the Company or of any
business acquired by any of the Company or the Guarantors for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the managing
underwriter or underwriters on behalf of any underwriters, such
letters to be in
22
-20-
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten
offerings of debt securities similar to the Notes and such other
matters as may be reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof (or such
other provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters
or agents) with respect to all parties to be indemnified pursuant to
said Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
If (1) a Shelf Registration is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being
sold, or each such Participating Broker-Dealer, as the case may be,
the managing underwriter or underwriters participating in any such
disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be (collectively,
the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Company and the Guarantors
and their respective subsidiaries (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company and the Guarantors and their
respective subsidiaries to supply all information in each case
reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Company and the Guarantors
determine, in good faith, to be confidential and any Records which
they notify the Inspectors are confidential shall not be disclosed by
the Inspectors unless (i) the disclosure of such Records is necessary
to avoid or correct a material misstatement or material omission in
such Registration Statement, (ii) the release of such Records is
ordered pursuant
23
-21-
to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer or
underwriter will be required to agree that information obtained by it
as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in
the securities of the Company or for any purpose other than in
connection with such Registration Statement unless and until such is
made generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give
prompt notice to the Company and allow the Company to undertake
appropriate action to prevent disclosure of the Records deemed
confidential at their expense.
Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or
the trust indenture provided for in Section 2(a), as the case may be,
to be qualified under the TIA not later than the effective date of
the Exchange Registration Statement or the first Registration
Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and
the Holders of the Registrable Notes, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best
efforts to cause such 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 SEC to enable such indenture to be so
qualified in a timely manner.
Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Notes are sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first
24
-22-
fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company and the
Guarantors, in a form customary for underwritten offerings of debt
securities similar to the Notes, addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) each of the Company and the Guarantors
has duly authorized, executed and delivered the Exchange Notes and
Private Exchange Notes and the related indenture and (ii) each of the
Exchange Notes or the Private Exchange Notes, as the case may
be, and related indenture constitute a legal, valid and binding
obligation of each of the Company and the Guarantors, enforceable
against each of the Company and the Guarantors in accordance with its
respective terms (with customary exceptions).
If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company and the Guarantors (or to such other Person as directed by
the Company and the Guarantors) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company and the
Guarantors shall ▇▇▇▇, or cause to be marked, on such Registrable
Notes that such Registrable Notes are being canceled in exchange for
the Exchange Notes or the Private Exchange Notes, as the case may be;
and, in no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
Cooperate with each seller of Registrable Notes covered by
any Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the
"NASD").
Use their respective best efforts to take all other
reasonable steps necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby.
25
-23-
The Company and the Guarantors may require each seller of
Registrable Notes or Participating Broker-Dealer as to which any
registration is being effected to furnish to the Company and the
Guarantors such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as the
case may be, as the Company and the Guarantors may, from time to
time, reasonably request. The Company may exclude from such
registration the Registrable Notes of any seller or Participating
Broker-Dealer who fails to furnish such information within a
reasonable time after receiving such request. Each seller as to
which any Shelf Registration is being effected agrees to furnish
promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by
such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as the
case may be, that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section
5(k), or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the
event the Company shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by
the number of days during such periods from and including the date of
the giving of such notice to and including the date when each seller
of Registrable Notes covered by such Registration Statement or
Exchange Notes to be sold by such Holder or Participating
Broker-Dealer, as the case may be, shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by Section
5(k) or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company and the Guarantors
shall be borne by the Company and the Guaran-
26
-24-
tors, jointly and severally, whether or not the Exchange Offer
or a Shelf Registration is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and
(B) fees and expenses of compliance with state securities or Blue Sky
laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications
of the Registrable Notes or Exchange Notes and determination of
the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions in the United States
(x) where the Holders of Registrable Notes are located, in the case
of the Exchange Notes, or (y) as provided in Section 5(h), in the
case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses (including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a
form eligible for deposit with The Depository Trust Company and of
printing Prospectuses if the printing of Prospectuses is reasonably
requested by the managing underwriter or underwriters, if any, or, in
respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, if
reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes included in any
Registration Statement or of such Exchange Notes, as the case may
be), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and fees and disbursements
of special counsel for the sellers of Registrable Notes (subject to
the provisions of Section 6(b)), (v) fees and disbursements of all
independent certified public accountants referred to in Section
5(n)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act liability
insurance, if the Company and/or the Guarantors desire such
insurance, (viii) fees and expenses of the Trustee, (ix) fees and
expenses of all other Persons retained by the Company and/or the
Guarantors, (x) internal expenses of the Company and the Guarantors
(including, without limitation, all salaries and expenses of officers
and employees of the Company and the Guarantors performing legal or
accounting duties), (xi) the expense of any annual audit, (xii) the
fees and expenses incurred in connection with any listing of the
securities to be registered on any securities exchange and (xiii) the
expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agree-
27
-25-
ments, securities sales agreements, indentures and any other
documents necessary in order to comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the
Company and the Guarantors, jointly and severally, shall reimburse
the Holders of the Registrable Notes being registered in such
registration for the reasonable fees and disbursements of not more
than one counsel (in addition to appropriate local counsel) chosen by
the Holders of a majority in aggregate principal amount of the
Registrable Notes to be included in such Registration Statement and
other reasonable and documented out-of-pocket expenses of the Holders
of Registrable Notes incurred in connection with the registration of
the Registrable Notes. The Company and the Guarantors shall not have
any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities.
7. Indemnification
(a) Each of the Company and the Guarantors, jointly and
severally, agrees to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, the officers and
directors of each such Person, and each Person, if any, who controls
any such Person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, the reasonable and
documented legal fees and other expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted)
caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto) or any preliminary Prospectus, or caused by, arising out of
or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Participant
furnished to the Company in writing by such Participant expressly for
use therein; provided that the foregoing indemnity with respect to
any preliminary Prospectus shall not inure to the benefit of any
Participant (or to the benefit of an officer or director of such
Participant or any
28
-26-
Person controlling such Participant) from whom the Person
asserting any such losses, claims, damages or liabilities purchased
Registrable Notes or Exchange Notes if such untrue statement or
omission or alleged untrue statement or omission made in such
preliminary Prospectus is eliminated or remedied in the related
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) and a copy of the
related Prospectus (as so amended or supplemented) shall have been
furnished to such Participant at or prior to the sale of such
Registrable or Exchange Notes, as the case may be, to such Person.
(b) Each Participant will be required to agree, severally and
not jointly, to indemnify and hold harmless the Company and the
Guarantors, their respective directors and officers and each Person
who controls any of the Company or the Guarantors within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company and
the Guarantors to each Participant and shall have the rights and
duties given to the Company and the Guarantors in paragraph (c) of
this Section 7 (except that if the Company and the Guarantors shall
have assumed the defense thereof, such Participant shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Participant), but only with
reference to information relating to such Participant furnished to
the Company and the Guarantors in writing by such Participant
expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary Prospectus. The
liability of any Participant under this paragraph (b) shall in no
event exceed the proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 7,
such Person (the "Indemnified Person") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain one counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any
others the Indemnifying Person may reasonably designate in such
proceeding and shall pay the reasonable fees and expenses incurred by
such counsel related to such proceeding. In any such
29
-27-
proceeding, any Indemnified Person 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 Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Person has
failed to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and such Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those
available to any such Indemnifying Person. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees
and expenses of more than one separate law firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees
and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold
a majority in interest of Registrable Notes and Exchange Notes sold
by all such Participants and any such separate firm for the Company
and the Guarantors, their directors, their officers and such control
Persons of the Company and the Guarantors shall be designated in
writing by the Company. The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its prior
written consent, but if settled with such consent or if there is a
final judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the
Indemnifying Person agrees to indemnify any Indemnified Person from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to
reimburse the Indemnified Person for reasonable fees and expenses
incurred by counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for
any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after
receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not
be liable for any settlement effected without its consent pursuant to
this sentence if the Indemnifying Party is contesting, in good faith,
the request for reimbursement. No Indemnifying Person shall, without
the prior written consent of
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the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes
an unconditional release (or any other release reasonably acceptable
to the Indemnified Person) of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and
(b) of this Section 7 is unavailable to an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to
therein (other than as a result of the proviso set forth in Section
7(a)), then each Indemnifying Person under such paragraphs, in lieu
of indemnifying such Indemnified Person thereunder, shall contribute
to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the Company and the
Guarantors on the one hand and the Participants on the other 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 and the
Guarantors on the one hand and the Participants on the other 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 and the Guarantors or by the Participants and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7, in no event shall a Participant be required to contribute any
amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Notes or
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Exchange Notes exceeds the amount of any damages that such
Participant 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.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to
above.
8. Rules 144 and 144A
Each of the Company and the Guarantors covenants that it will
file the reports required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC
thereunder in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any
Holder of Registrable Notes, make publicly available other
information of a like nature so long as necessary to permit sales
pursuant to Rule 144 or Rule 144A. Each of the Company and the
Guarantors further covenants that so long as any Registrable Notes
remain outstanding to make available to any Holder of Registrable
Notes in connection with any sale thereof, the information required
by Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Registrable Notes pursuant to (a) such Rule 144A, or
(b) any similar rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the
investment banking firm or firms that will underwrite the offering
and the manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount
of such Registrable Notes included in such offering and shall be
reasonably acceptable to the Company and the Guarantors.
No Holder of Registrable Notes may participate in any
underwritten offering hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Notes on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder
to approve such arrangements and (b) completes
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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) Remedies. In the event of a breach by the Company or any
Guarantor of any of its obligations under this Agreement, other than
the occurrence of an event which requires payment of Additional
Interest, each Holder of Registrable Notes, in addition to being
entitled to exercise all rights provided herein, in the Indenture or,
in the case of the Initial Purchasers, in the Purchase Agreement or
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Each of the
Company and the Guarantors, jointly and severally, 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 agrees, jointly and severally, 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.
(b) Enforcement. The Trustee shall be authorized to enforce the
provisions of this Agreement for the ratable benefit of the Holders.
(c) No Inconsistent Agreements. None of the Company or the
Guarantors has entered, as of the date hereof, and the Company and
the Guarantors shall not enter, after the date of this Agreement,
into any agreement with respect to any of their securities that is
inconsistent with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with the provisions
hereof. None of the Company or the Guarantors has entered or will
enter into any agreement with respect to any of its securities which
will grant to any Person piggy-back rights with respect to a
Registration Statement required to be filed under this Agreement.
(d) Adjustments Affecting Registrable Notes. Neither the
Company nor the Guarantors shall, directly or indirectly, take any
action with respect to the Registrable Notes as a class that would
adversely affect the ability of the Holders of Registrable Notes to
include such Registrable Notes in a registration undertaken pursuant
to this Agreement.
(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not
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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 of the then outstanding aggregate
principal amount of Registrable Notes. 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 of Registrable Notes whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold by
such Holders pursuant to such Registration Statement, provided that
the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(f) Notices. All notices and other communications (including
without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing
by hand-delivery, registered first-class mail, next-day courier or
telecopier:
(i) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address given by the Trustee to
the Company; and
(ii) if to the Company or the Guarantors, to ▇▇▇▇▇
Wheels International, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel and with a copy to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been
duly given: (i) when delivered by hand, if personally delivered;
(ii) five business days after being deposited in the mail, postage
prepaid, if mailed; (iii) one business day after being timely
delivered to a next-day courier; and (iv) when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee under the Indenture at the address specified in such
Indenture.
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(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Registrable Notes.
(h) Counterparts. This Agreement may be executed in any number
of counterparts 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
(k) Severability. 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 shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties hereto
shall use their 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.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a
final expression of their agreement, and is intended to be a complete
and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and
therein.
(m) Joint and Several Obligations. Unless otherwise stated
herein, each of the obligations of the Company and the Guarantors
under this Agreement shall be joint and several obligations of each
of them.
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(n) Notes Held by the Company or their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by
the Company or their affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
▇▇▇▇▇ WHEELS INTERNATIONAL, INC.,
a Delaware corporation
By:__________________________________
Name:
Title:
Guarantors:
▇▇▇▇▇ WHEELS INTERNATIONAL-
CALIFORNIA, INC., a Delaware
corporation
By:__________________________________
Name:
Title:
▇▇▇▇▇ WHEELS INTERNATIONAL-GEORGIA,
INC., a Delaware corporation
By:__________________________________
Name:
Title:
▇▇▇▇▇ WHEELS INTERNATIONAL-INDIANA,
INC., a Delaware corporation
By:__________________________________
Name:
Title:
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▇▇▇▇▇ WHEELS INTERNATIONAL-MEXICO,
INC., a Delaware corporation
By:__________________________________
Name:
Title:
▇▇▇▇▇ WHEELS INTERNATIONAL-MICHIGAN,
INC., a Delaware corporation
By:__________________________________
Name:
Title:
MOTOR WHEEL CORPORATION,
an Ohio corporation
By:__________________________________
Name:
Title:
MWC ACQUISITION SUB, INC.,
a Delaware corporation
By:__________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CIBC WOOD GUNDY SECURITIES CORP.
By:____________________________
Name:
Title:
38
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▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By:
---------------------------------
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
---------------------------------
Name:
Title: