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EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of
February 9, 2001
Among
BRL UNIVERSAL EQUIPMENT 2001 A, L. P. and
BRL UNIVERSAL EQUIPMENT CORP.
as Issuer
UNIVERSAL COMPRESSION HOLDINGS, INC. and
UNIVERSAL COMPRESSION, INC.,
as Company
and
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.,
FIRST UNION SECURITIES, INC.,
▇▇▇▇▇▇▇ SACHS & CO.,
BANC ONE CAPITAL MARKETS, INC. and
SCOTIA CAPITAL (USA), INC.
as Initial Purchasers
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$350 Million Aggregate Principal Amount
8 7/8% SENIOR SECURED NOTES DUE 2008
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TABLE OF CONTENTS
Page
1. Definitions........................................................................................... 1
2. Exchange Offer........................................................................................ 5
3. Shelf Registration.................................................................................... 8
4. Additional Interest................................................................................... 9
5. Registration Procedures............................................................................... 10
6. Registration Expenses................................................................................. 20
7. Indemnification....................................................................................... 21
8. Rule 144 and 144A..................................................................................... 25
9. Underwritten Registrations............................................................................ 25
10. Miscellaneous......................................................................................... 26
(a) No Inconsistent Agreements...................................................................... 26
(b) Adjustments Affecting Registrable Notes......................................................... 26
(c) Amendments and Waivers.......................................................................... 26
(d) Notices......................................................................................... 26
(e) Successors and Assigns.......................................................................... 28
(f) Counterparts.................................................................................... 28
(g) Headings........................................................................................ 28
(h) Governing Law................................................................................... 28
(i) Severability.................................................................................... 29
(j) Securities Held by the Issuer or the Company or Its Affiliates.................................. 29
(k) Third Party Beneficiaries....................................................................... 29
(l) Entire Agreement................................................................................ 29
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
February 9, 2001 by and among BRL Universal Equipment 2001 A, L.P., a Delaware
limited partnership ("BRL") and BRL Universal Equipment Corp., a Delaware
corporation ("BRL Corp.", and together with BRL, the "Issuer"), Universal
Compression, Inc., a Texas corporation ("UCI"), Universal Compression Holdings,
Inc., a Delaware corporation ("UCH", and together with UCI, the "Company"),
Deutsche Banc Alex. ▇▇▇▇▇ Inc., First Union Securities, Inc., ▇▇▇▇▇▇▇ Sachs &
Co., Banc One Capital Markets, Inc. and Scotia Capital (USA), Inc. (together,
the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of February 6, 2001 by and among the Issuer and the Initial
Purchasers (the "Purchase Agreement") that provides for the sale by the Issuer
to the Initial Purchasers of $350 million aggregate principal amount of the
Issuer's 8-7/8% Senior Secured Notes due 2008 (the "Notes") and the
Participation Agreements (the "Participation Agreements"), dated as of February
9, 2001, and among BRL, the Company and the other parties thereto. In order to
induce the Initial Purchasers to enter into the Purchase Agreement and BRL and
the Company to enter into the Participation Agreement, the Issuer and the
Company have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and any subsequent holder or
holders of notes. The execution and delivery of this Agreement is a condition to
the Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement and to BRL's entering into the Participation Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the first introductory paragraph hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day except a Saturday, a Sunday, or a day on which
banking institutions in New York, New York are required or authorized by law or
other governmental action to be closed.
Closing Date: The Closing Date as defined in the Purchase Agreement.
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Company: See the first introductory paragraph hereto.
Effectiveness Date: The date that is 180 days after the Issue Date,
provided, however, that with respect to any shelf registration, its
effectiveness date should be the 90th day after the Filing Date with respect
thereto.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
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) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Registration Statement: See Section 2(a) hereof.
Filing Date: (A) If no Exchange Offer Registration Statement has been
filed by the Issuers and the Company pursuant to this Agreement, the 90th day
after the Issue Date; and (B) with respect to a Shelf Registration Statement,
the 90th day after the delivery of a Shelf Notice as required pursuant to
Section 2(c) hereof.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of February 9, 2001 between the
Issuer 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 first introductory paragraph hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: The date on which the original Notes were sold to the
Initial Purchasers pursuant to the Purchase Agreement.
NASD: See Section 5(t) hereof.
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Notes: See the second introductory paragraph hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Participation Agreement: See the second introductory paragraph hereto.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
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, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note upon original issuance of the Notes and at
all times subsequent thereto, each Exchange Note as to which Section 2(c)(v)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(v) hereof is applicable, the Exchange Registration Statement) covering such
Note, Exchange Note or Private Exchange Note, as the case may be, has been
declared effective by the SEC and such Note, Exchange Note or Private Exchange
Note, as the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note, Exchange Note or Private Exchange Note,
as the case may be, is sold in compliance with Rule 144, (iii) such Note has
been exchanged for an Exchange Note or Exchange Notes pur-
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suant to an Exchange Offer and is entitled to be resold without complying with
the prospectus delivery requirements of the Securities Act, (iv) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture or (v) such Note, Exchange Note or
Private Exchange Note, as the case may be, in the reasonable opinion of the
Issuer and the Company, may be resold without restriction pursuant to Rule
144(k) under the Securities Act.
Registration Statement: Any registration statement of the Company under
the Securities Act, including, but not limited to, the Exchange Registration
Statement and any registration statement filed in connection with a Shelf
Registration, filed with the SEC 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.
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.
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) hereof.
Shelf Registration: See Section 3(a) hereof.
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).
Underwritten registration or underwritten offering: A registration in
which securities of the Issuer are sold to an underwriter for reoffering to the
public.
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2. Exchange Offer
(a) The Issuer and the Company shall file with the SEC a
registration statement, to the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, no later than the Filing Date
an offer to exchange (the "Exchange Offer") any and all of the Registrable Notes
(other than the Private Exchange Notes, if any) for a like aggregate principal
amount of debt securities of the Issuer that are identical in all material
respects to the Notes (the "Exchange Notes") (and that are entitled to the
benefits of the Indenture or a trust indenture that is identical in all material
respects 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 that,
in either case, has been qualified under the TIA), except that the Exchange
Notes (other than Private Exchange Notes, if any) shall have been registered
pursuant to an effective Registration Statement under the Securities Act and
shall contain no restrictive legend thereon. The Exchange Offer shall be
registered under the Securities Act on the appropriate form (the "Exchange
Registration Statement") and shall comply with all applicable tender offer rules
and regulations under the Exchange Act. The Issuer and the Company agree to use
their reasonable best efforts to (x) cause the Exchange Registration Statement
to be declared effective under the Securities Act on or before the Effectiveness
Date; (y) keep the Exchange Offer open for at least 20 business 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
210th day following the Issue Date. If after such Exchange Registration
Statement is declared effective by the SEC, the Exchange Offer or the issuance
of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Registration Statement shall be deemed not to
have become effective for purposes of this Agreement, unless such interference
is cured within 5 business days. 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 and that such Holder
is not an affiliate of the Issuer or the Company within the meaning of the
Securities Act and is not acting on behalf of any persons or entities 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 Issuer and the Company shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to which clause 2(c)(v)
hereof applies) pursuant to Section 3 hereof.
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(b) The Issuer and the Company shall include within the
Prospectus contained in the Exchange Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial Purchasers, that
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 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, represent the prevailing views of the Staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers to the extent permitted by
applicable policies and regulations of the SEC and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Notes.
The Issuer and the Company shall use their reasonable 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 is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not exceed 180 days after the
consummation of the Exchange Offer (or such longer period if extended pursuant
to the last paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by it and having, or that are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Issuer, upon the written request of the Initial
Purchasers simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "Private Exchange") for such Notes held by the Initial Purchasers a like
principal amount of debt securities of the Issuer that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and that
are issued pursuant to the same indenture as the Exchange Notes), except for the
placement of a restrictive legend on such Private Exchange Notes. The Private
Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the Issue Date.
In connection with the Exchange Offer, the Issuer and the
Company shall:
(1) mail to each Holder of record a copy of the Prospectus
forming part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day
on which the Exchange Offer remains open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Issuer and the Company shall:
(1) accept for exchange all Notes properly tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(3) 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 identical in all material
respects to the Indenture, which in either event shall provide that (1) the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture and (2) the Private Exchange Notes shall 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 not exchanged in the Exchange Offer shall vote and consent together on
all matters as one class and that neither the Exchange Notes, the Private
Exchange Notes or such Notes will have the right to vote or consent as a
separate class on any matter.
(c) If (i) the Issuer and the Company are not permitted to
file the Exchange Offer Registration Statement or to consummate the Exchange
Offer because the Exchange Offer is not permitted by any applicable law or in
currently prevailing interpretations of the staff of the Commission or (ii) any
holder of a Note notifies the Issuer and the Company that (A) due to a change in
law or policy it is not entitled to participate in the Exchange Offer, (B) due
to a change in law or policy it may not resell Exchange Notes acquired by it in
the Exchange Offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Registration Statement is not appropriate
or available for such resales by such holder or (C) it owns Notes (including any
Initial Purchaser that holds Notes as part of an unsold al-
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lotment from the original offering of the Notes) acquired directly from the
Issuer or an affiliate of the Issuer or (iii) any holder of Private Exchange
Notes so requests after the consummation of the Private Exchange or (iv) the
Issuer and the Company have not consummated the Exchange Offer within 210 days
after the Issue Date (each such event referred to in clauses (i) through (iv), a
"Shelf Filing Event"), then the Issuer and the Company shall promptly deliver
written notice thereof (the "Shelf Notice") to the Holders and the Trustee and
shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Issuer and the Company shall as
promptly as reasonably practicable 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 Registrable Notes (the "Shelf Registration"). If the Issuer and the
Company shall not have yet filed an Exchange Registration Statement, the Issuer
and the Company shall use their reasonable best efforts to file with the SEC the
Shelf Registration on or prior to the Filing Date. The Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings). The
Issuer and the Company shall not permit any securities other than the
Registrable Notes and related securities to be included in the Shelf
Registration.
The Issuer and the Company shall use their reasonable best
efforts to cause the Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to keep the Shelf
Registration continuously effective under the Securities Act until the date that
is two years (or such shorter period as may be established by any amendment to
the two year period set forth in Rule 144(k) under the Securities Act) from the
Issue Date (the "Effectiveness Period"), or such shorter period ending when all
Registrable Notes covered by the Shelf Registration have been sold in the manner
set forth and as contemplated in the Shelf Registration; provided, however, that
no Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration or to use the Prospectus forming a part thereof for resales of
Registrable Securities unless such Holder has provided the Issuers within 10
Business Days after receipt of a request therefor, with the information required
by Sections 5(v) and 5(w), as applicable.
(b) Withdrawal of Stop Orders. If the Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities registered
thereunder), the Issuer and the Company shall use their reasonable best efforts
to obtain the prompt withdrawal of any order suspending the effectiveness
thereof.
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(c) Supplements and Amendments. The Issuer and the Company
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, if required by the Securities Act, or if 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
of such Registrable Notes; provided, that all requesting Holders have provided
the Issuer and the Company with the information required by Section 5(v).
4. Additional Interest
(a) The Issuer and the Company and the Initial Purchasers
agree that the Holders of Registrable Notes will suffer damages if the Issuer
and the Company fail to fulfill their respective 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 Issuer agrees to pay as liquidated
damages, additional interest on the Notes (the "Additional Interest") under the
circumstances and to the extent as follows (without duplication):
(i) if (A) neither the Exchange Registration Statement nor the
Shelf Registration Statement has been filed with the SEC on or prior to
the Filing Date or (B) notwithstanding that the Issuer and the Company
have consummated or will consummate an Exchange Offer, the Issuer and
the Company are required to file a Shelf Registration Statement and
such Shelf Registration Statement is not filed on or prior to the
Filing Date applicable thereto, then commencing on the day after either
such required filing date, Additional Interest shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum for the
first 90 days immediately following each such filing date, such
Additional Interest rate increasing by an additional 0.25% per annum at
the beginning of each subsequent 90 day period; or
(ii) if (A) neither the Exchange Registration Statement nor
the Shelf Registration Statement has been declared effective on or
prior to 180 days after the Issue Date or (B) notwithstanding that the
Issuer and the Company have consummated or will consummate an Exchange
Offer, the Issuer and the Company are required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the 90th day following the
date such Shelf Registration Statement was filed, then, commencing on
the first day after the 180th day following the Issue Date or the day
after the 90th day such Shelf Registration Statement was filed, as the
case may be, Additional Interest shall accrue on the principal amount
of the Notes at a rate of 0.25% per annum for the first 90 days
immediately following such date, such Additional Interest rate
increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period; or;
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(iii) if (A) the Issuer and the Company have not exchanged the
Exchange Notes for all Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to the 210th day after the
Issue Date or (B) if applicable, the Shelf Registration Statement has
been declared effective and such Shelf Registration Statement ceases to
be effective at any time prior to the second anniversary of its
effective date (other than after such time as all Notes have been
disposed of thereunder), then Additional Interest shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum for the
first 90 days commencing on (x) the 211th day after the Issue 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, such Additional
Interest rate by increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period;
provided, however, that the Additional Interest rate on the
Notes may not exceed in the aggregate 1.0% per annum; provided,
further, however, that (1) upon the filing of the Exchange Registration
Statement or a Shelf Registration Statement (in the case of Section
4(a)(i)), (2) upon the effectiveness of the Exchange Registration
Statement or Shelf Registration Statement (in the case of Section
4(a)(ii)), or (3) upon the exchange of Exchange Notes for all Notes
tendered (in the case of Section 4(a)(iii)(A)), or upon the
effectiveness of the Shelf Registration Statement which had ceased to
remain effective (in the case of Section 4(a)(iii)(B)), Liquidated
Damages on the Notes as a result of such Section, as the case may be,
shall cease to accrue and the interest rate borne by the registrable
notes will be reduced to the original interest rate.
(b) The Issuer and the Company 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 semiannually on each February 15 and
August 15 (to the holders of record on February 1 and August 1), commencing with
the first such date occurring after any such Additional Interest commences to
accrue. 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 Sections 2 or 3 hereof, the Issuer and the Company shall effect such
registrations to permit the
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sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Issuer and the Company hereunder, the Issuer
and the Company shall:
(a) Prepare and file with the SEC on or prior to the Filing
Date, a Registration Statement or Registration Statements as prescribed
by Sections 2 or 3 hereof, and use their reasonable best efforts to
cause each such Registration Statement to become effective and remain
effective as provided herein; provided, however, that, if (1) such
filing is pursuant to Section 3 hereof or (2) a Prospectus contained in
an Exchange Registration Statement filed pursuant to Section 2 hereof
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 Issuer and the
Company shall furnish to and afford the Holders of the Registrable
Notes covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, 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 (in
each case at least two business days prior to such filing). The Issuer
and the Company shall not file any Registration Statement or Prospectus
or any amendments or supplements thereto if the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, or their counsel, or the managing underwriters, if any,
shall reasonably object on a timely basis; provided, however, that if
the Issuers' and the Company's failure to file a Registration Statement
or Prospectus, or any amendments or supplements thereto, in the
applicable time periods as set forth in Section 4, is based upon such
an objection, no Additional Interest shall accrue.
(b) 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)
promulgated under the Securities Act; and comply in all material
respects with the provisions of the Securities Act and the Exchange Act
applicable to it 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 Issuer and the Company shall be deemed not
to have used their reasonable best efforts to keep a Registration
Statement effective dur-
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ing the Applicable Period if the Issuer and the Company voluntarily
take any action that would result in 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 Issuer and the Company comply in all
material respects with this Agreement, including without limitation,
the provisions of paragraphs 5(k) and (w) hereof.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof 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 (with respect to the
Registration Statement filed pursuant to Section 3 hereof), or each
such Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, 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 has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon written request, obtain, at the sole expense of the
Issuer and the Company, one conformed copy of such Registration
Statement or post-effective amendment 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)
of the receipt by the Issuer or the Company 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 written threat of any proceeding for such purpose, (iv) of the
happening of any event, the existence of any condition 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 material
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 the
light of the circum-
15
-13-
stances under which they were made, not misleading and (v) of the
Issuer or the Company's determination that a post-effective amendment
to a Registration Statement would be appropriate.
(d) Use its reasonable 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 for sale in any
jurisdiction and, if any such order is issued, to use its best efforts
to obtain the withdrawal of any such order at the earliest possible
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters, 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
or underwriters, if any, such Holders or counsel for any of them
determine is reasonably necessary to be included therein, (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuer and the Company have
received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment and (iii) supplement
or make amendments to such Registration Statement, provided, however,
that the Issuer and the Company shall not be required to take any
action pursuant to this Section 5(e) that would, in the opinion of
counsel for the Company and Issuer, violate applicable law.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof 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 their
respective counsel and each managing underwriter, if any, at the sole
expense of the Issuer and the Company, 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.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof 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
16
-14-
each selling Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their respective counsel and the
underwriters, if any, at the sole expense of the Issuer and the
Company, 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 Section 5(w), the
Issuer and the Company hereby consent 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 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.
(h) Prior to any public offering of Registrable Notes or
Exchange 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 Applicable Period, use their
reasonable 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 (or exemption from such registration
or qualification) of 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 reasonably request in writing;
provided, however, that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuer and the Company agree to cause their
respective 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, however, that neither the
Issuer nor the Company 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, (C) subject
itself to taxation in any such jurisdiction where it is not then so
subject, or (D) make any change to its respective certificate of
incorporation or bylaws (or similar organizational documents) or any
agreement between it and its shareholders.
17
-15-
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, 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.
(j) Use their reasonable best efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the Holders thereof or the 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 the Company will
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof 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)(iv) or 5(c)(v),
hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the Issuer's and the Company's sole
expense, 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.
(l) Use their reasonable 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.
18
-16-
(m) 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
Company and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be.
(n) In connection with any 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 or underwriters 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, and covenants with, the underwriters
with respect to the business of the Company and its subsidiaries
(including any acquired business, properties or entity, if applicable)
and the Issuer 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 in writing if and when requested; (ii)
obtain the written opinions of counsel to each of the Company and the
Issuer, as the case may be, and written updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of
debt similar to the Notes and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) obtain
"cold comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Company and
the Issuer (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each of the underwriters,
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 debt securities similar to the Notes and such
other matters as 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.
19
-17-
(o) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof 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, any
underwriter 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, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours and upon
reasonable advance notice all relevant financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries and the Issuer (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the respective officers,
directors and employees of the Company and its subsidiaries and the
Issuer to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement. Any such
access granted to the Inspectors under this Section 5(o) shall be
subject to the prior receipt by the Company and the Issuer of written
undertakings to preserve the confidentiality of any information deemed
by the Company or the Issuer to be confidential in form and substance
reasonably satisfactory to the Company or the Issuer. Records that the
Company or the Issuer determines, in good faith, to be confidential and
any Records that they notify the Inspectors are confidential shall not
be disclosed by the Inspectors unless (i) the Issuer or the Company in
their sole discretion based on advice of counsel determine that
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to or involving this
Agreement or any transactions contemplated hereby or arising hereunder
or (iv) the information in such Records has been made generally
available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer 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 Issuer
or the Company unless and until such information is 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 notice to the Company or the
Issuer, as applicable, and allow the Company or the Issuer,
20
-18-
as applicable, to undertake appropriate action to prevent disclosure of
the Records deemed confidential at the Company's or the Issuer's, as
applicable, sole expense.
(p) 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) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the Exchange Offer 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 reasonable 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.
(q) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its
securityholders earning 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 fiscal quarter (or 90 days after the end of any 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 fiscal
quarter of the Company and the Issuer after the effective date of a
Registration Statement, which statements shall cover said fiscal
periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuer, who may, at the
Issuer's election, be internal counsel to the Issuer, in a form
customary for underwritten transactions, 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, that the
Exchange Notes or Private Exchange Notes, as the case may be, and the
related indenture constitute legal, valid and binding obligations of
the Issuer, enforceable against the Issuer in accordance with its
respective terms, subject to customary exceptions and qualifications.
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company or the Issuer (or to such other Person as directed by the
Issuer or the Company) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, the Issuer shall ▇▇▇▇, or
cause to be marked, on such Registrable Notes that such Registrable
Notes are being cancelled in exchange for the Exchange Notes or the
Private Exchange Notes, as
21
-19-
the case may be; in no event shall such Registrable Notes be marked as
paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, 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").
(u) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
(v) The Company and the Issuer may require each seller of
Registrable Notes as to which any registration is being effected to
furnish in writing to the Company and the Issuer such information
regarding such seller and the distribution of such Registrable Notes as
the Company and the Issuer may, from time to time, reasonably request.
The Company and the Issuer may exclude from such registration the
Registrable Notes of any seller who fails to furnish such information
within a reasonable time (but no later than 5 business days) after
receiving such request and in such event shall have no further
obligation under this Agreement (including, without limitation,
obligations under Section 4 hereof) with respect to such seller or any
subsequent holder of such Registrable Notes. Each seller as to which
any Shelf Registration is being effected agrees to furnish promptly to
the Company and the Issuer all information required to be disclosed in
order to make the information previously furnished to the Company and
the Issuer by such seller not materially misleading.
(w) 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 actual receipt of any notice from the Company
or the Issuer of the happening of any event of the kind described in
Sections 5(c)(ii), 5(c)(iv) or 5(c)(v) 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) hereof, or until it is advised in writing (the "Advice")
by the Company and the Issuer that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Company or the Issuer 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 Regis-
22
-20-
trable Notes covered by such Registration Statement or Exchange Notes
to be sold by such 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) hereof or (y) the Advice. Each
holder of Registrable Notes agrees that the Issuer and the Company has
the right to require such holders to discontinue dispositions for up to
90 days if the Issuer and the Company gives notice of a material
non-public acquisition or event; provided, however, that each holder
shall be subject to the hold-back restrictions of this Section 5 only
twice during the term of this Agreement. During any such
discontinuance, no Additional Interest shall accrue or otherwise be
payable to the Holders.
In the event of a Shelf Registration, in addition to the
information required to be provided by each selling Holder in accordance with
the preceding paragraph, the Issuer and the Company may require such selling
Holder to furnish to the Issuer and the Company such additional information
regarding such selling Holder and such selling Holder's intended method of
distribution of Registrable Notes as may be required in order to comply with the
Securities Act. Each such selling Holder agrees to notify the Issuer and the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such selling Holder to the Issuer and the Company or of
the occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such selling Holder or such selling
Holder's intended method of disposition of such Registrable Notes required to be
stated or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly to furnish to the Issuer and the
Company any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to such selling Holder or the disposition of such Registrable
Notes, an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading in light of the circumstances then existing.
6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer and the Company (other than
underwriting discounts or commissions) shall be borne by the Issuer and the
Company 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) reasonable 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 ▇▇▇▇▇▇▇▇-
▇▇
-21-
ble Notes or Exchange Notes for investment under the laws of such jurisdictions
(x) where the holders of Registrable Notes are located, in the case of the
Exchange Notes, or (y) as provided in Section 5(h) hereof, 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 requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or sold by any Participating Broker-Dealer, as the case may be, (iii)
reasonable messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and the Issuer and fees and
disbursements of not more than one special counsel for the sellers of
Registrable Notes, (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees, if any,
and any fees associated with making the Registrable Notes or Exchange Notes
eligible for trading through the Depository Trust Company, (vii) Securities Act
liability insurance, if the Issuer or the Company desire such insurance, (viii)
fees and expenses of all other Persons retained by the Issuer and the Company,
(ix) internal expenses of the Issuer and the Company (including, without
limitation, all salaries and expenses of officers and employees of the Issuer or
the Company performing legal or accounting duties), (x) the expense of any
annual audit, (xi) the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange, if applicable,
and (xii) the expenses relating to printing, word processing and distributing of
all Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary to comply with this
Agreement.
7. Indemnification
(a) The Issuer and the Company, severally and not jointly,
agree to indemnify and hold harmless each Holder of Registrable Notes offered
pursuant to a Shelf Registration Statement and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, the officers and directors
of each such Person or its affiliates, and each other Person, if any, who
controls any such Person or its affiliates 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 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 pursuant to which the offering of such Registrable Notes or Exchange
Notes, as the case may be, is registered (or any amendment thereto) or related
Prospectus (or any amendments or supplements thereto) or any related preliminary
prospectus, or caused by, arising out of or
24
-22-
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;
provided, however, that the Issuer and the Company will not be required to
indemnify a Participant if (i) 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 Issuer and the Company in writing by or on
behalf of such Participant expressly for use therein or (ii) if such Participant
sold to the person asserting the claim the Registrable Notes or Exchange Notes
that are the subject of such claim and such untrue statement or omission or
alleged untrue statement or omission was contained or made in any preliminary
prospectus and corrected in the Prospectus or any amendment or supplement
thereto and the Prospectus does not contain any other untrue statement or
omission or alleged untrue statement or omission of a material fact that was the
subject matter of the related proceeding and Participant failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such Registrable Notes or
Exchange Notes sold to such Person if required by applicable law, unless such
failure to deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company or the Issuer, as the
case may be, with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless each of the Issuer and the Company, their respective
directors and officers and each Person who controls the Company and to Issuer
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 Issuer and
the Company to each Participant, but only (i) with reference to information
relating to such Participant furnished to the Issuer and the Company in writing
by or on behalf of such Participant expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto or any preliminary
prospectus or (ii) with respect to any untrue statement or representation made
by such Participant in writing to the Issuer and the Company. The liability of
any Participant under this paragraph 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 of the two preceding paragraphs, 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 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 actually incurred by such counsel related to
such proceeding; provided, however, that the fail-
25
-23-
ure to so notify the Indemnifying Person shall not relieve it of any obligation
or liability that it may have hereunder or otherwise (unless and only to the
extent that such failure directly results in material prejudice to the
Indemnifying Person and the Indemnifying Person was not otherwise aware of such
action or claim). In any such 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 shall have failed within a reasonable
period of time 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 representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that, unless there exists a conflict among Indemnified Persons, the
Indemnifying Person shall not, in connection with any one such proceeding or
separate but substantially similar related proceedings in the same jurisdiction
arising out of the same general allegations, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
promptly as they are incurred, subject to an undertaking by such Indemnified
Persons that all such amounts to which any Indemnified Person is not entitled
pursuant to this Section 7, as determined by a final non-appealable judicial
determination, shall be returned promptly to the relevant Indemnifying Persons.
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 shall be reasonably acceptable to the Company and the Issuer
and any such separate firm for the Issuer and the Company, its respective
directors, its officers and such control Persons of the Issuer and the Company
shall be designated in writing by the Issuer and the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its prior written consent (which consent shall not be unreasonably withheld or
delayed), but if settled with such consent or if there be a final non-appealable
judgment for the plaintiff for which the Indemnified Person is entitled to
indemnification pursuant to this Agreement, the Indemnifying Person agrees to
indemnify and hold harmless each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person (which
consent shall not be unreasonably withheld or delayed), effect any settlement or
compromise 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 (A) includes
an unconditional written release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnified Person.
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(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder and in order to provide for just and equitable contribution, 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 Indemnifying Person or Persons
on the one hand and the Indemnified Person or Persons on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative fault of the parties 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 Issuer and the Company on the one hand or such
Participant or such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(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
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid 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) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 7 shall be paid by the Indemnifying Persons to the Indemnified
Person as such losses, claims, damages, liabilities or expenses are incurred,
subject to an undertaking by such Indemnified Person that all such amounts to
which such Indemnified Person is not entitled pursuant to this Section 7,
27
-25-
as determined by a final non-appealable judicial determination, shall be
returned promptly to the relevant Indemnifying Persons.
(g) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability that the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Rule 144 and 144A
The Issuer and the Company covenant that they will file the
reports required to be filed by them under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder in a timely
manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Issuer or the Company is not required to
file such reports, it will, upon the request of any Holder of Registrable Notes,
make available annual reports and such information, documents and other reports
of the type specified in Sections 13 and 15(d) of the Exchange Act. The Issuer
and the Company further covenant for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A and take such further action as any
Holder of Registrable Notes may reasonably request and to the extent required
from time to time to enable such holder to sell Registrable Notes without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144(K) under the Securities Act.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and 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 reasonably acceptable to the
Issuer and the Company.
No Holder of Registrable Notes may participate in any
underwritten registration 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 and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
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10. Miscellaneous
(a) No Inconsistent Agreements. The Issuer and the Company
have not, as of the date hereof, and shall not, after the date of this
Agreement, enter into any agreement with respect to any of the Issuer's or the
Company's securities that is inconsistent with the rights granted to the Holders
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. Neither the Issuer nor the Company has entered into and will
not enter into, any agreement with respect to any of their respective debt
securities that will grant to any Person piggy-back registration rights with
respect to a Registration statement.
(b) Adjustments Affecting Registrable Notes. Neither the
Issuer nor the Company 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.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of (i) the Company and the Issuer and (ii) the Holders of
not less than a majority in aggregate principal amount of the then outstanding
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, however, that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(d) 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 air courier or facsimile:
1. if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
▇▇
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
2. if to the Initial Purchasers, at the addresses
specified in Section 10(d)(1);
3. if to the Company, at the address as follows:
UNIVERSAL COMPRESSION, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
GARDERE ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
4. If to the Issuer to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇
-▇▇-
▇▇▇▇ ▇▇▇▇▇▇ Creek Boulevard
Suite 1240A, Lockbox 406
Dallas, TX
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
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 and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto; provided, however, that this Agreement shall not inure to the benefit of
or be binding upon a successor or assign of a Holder unless and to the extent
such successor or assign holds Registrable Notes. If any transferee of any
holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Notes, 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, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such person shall be entitled to receive the benefits hereof.
(f) 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) 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 WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. 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.
31
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(i) 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. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuer or the Company or Its
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable Notes held by
the Issuer or the Company or its 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.
(k) Third Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Issuer and the Company on the other, or
between or among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.
32
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
BRL UNIVERSAL EQUIPMENT
2001 A, L.P.
By: BRL Universal Equipment
Management, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BRL UNIVERSAL EQUIPMENT CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
UNIVERSAL COMPRESSION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
33
-31-
UNIVERSAL COMPRESSION HOLDINGS,
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
FIRST UNION SECURITIES, INC.
▇▇▇▇▇▇▇, SACHS & CO.
BANC ONE CAPITAL MARKETS, INC.
SCOTIA CAPITAL (USA) INC.
By: DEUTSCHE BANC ALEX. ▇▇▇▇▇
INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President