Exhibit 10.6
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 5, 2004
By and Among
▇▇▇▇▇'▇ HOLDINGS, INC.
as Issuer,
▇▇▇▇▇'▇ CORPORATION
as Guarantor,
and
UBS SECURITIES LLC, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
and BANC OF AMERICA SECURITIES LLC
as Initial Purchasers
10% Senior Notes due 2012
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TABLE OF CONTENTS
Page
1. Definitions...........................................................1
2. Exchange Offer........................................................4
3. Shelf Registration....................................................7
4. Liquidated Damages....................................................8
5. Registration Procedures..............................................10
6. Registration Expenses................................................18
7. Indemnification......................................................19
8. Rules 144 and 144A...................................................22
9. Underwritten Registrations...........................................22
10. Miscellaneous........................................................23
(a) No Inconsistent Agreements...................................23
(b) Adjustments Affecting Registrable Notes......................23
(c) Amendments and Waivers.......................................23
(d) Notices 23
(e) Successors and Assigns.......................................25
(f) Counterparts25
(g) Headings 25
(h) Governing Law................................................25
(i) Severability25
(j) Securities Held by the Issuer or Its Affiliates..............25
(k) Third-Party Beneficiaries....................................25
(l) Attorneys' Fees..............................................25
(m) Entire Agreement.............................................26
SIGNATURES...................................................................S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of October 5, 2004, by and among ▇▇▇▇▇'▇ Holdings, Inc., a New York
corporation (the "Issuer"), ▇▇▇▇▇'▇ Corporation, a Delaware corporation (the
"Guarantor"), and UBS Securities LLC, ▇▇▇▇▇▇▇, Sachs & Co. and Banc of America
Securities LLC (each an "Initial Purchaser" and collectively, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of September 29, 2004, by and among the Issuer, the
Guarantor and the Initial Purchasers (the "Purchase Agreement"), relating to the
offering of $175 million aggregate principal amount of the Issuer's 10% Senior
Notes due 2012, including the Guarantees (defined below) endorsed thereon (the
"Notes"). 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:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c)
hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first
introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth in
Section 2(b) hereof.
"Board of Directors" shall have the meaning set forth in
Section 5 hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Commission" shall mean the Securities and Exchange
Commission.
"Day" shall mean a calendar day.
"Damages Payment Date" shall have the meaning set forth in
Section 4(b) hereof.
"Delay Period" shall have the meaning set forth in Section 5
hereof.
"DTC" shall have the meaning set forth in Section 5 hereof.
"Effectiveness Period" shall have the meaning set forth in
Section 3(b) hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
set forth in Section 2(a) hereof.
"Guarantees" shall mean, collectively, the full and
unconditional guarantee of the Issuer's obligations under the Notes, the
Exchange Notes, or the Private Exchange Notes, as the case may be, by the
Guarantor.
"Guarantor" shall have the meaning set forth in the first
introductory paragraph hereto and shall also include the Guarantor's permitted
successors and assigns.
"Holder" shall mean any holder of a Registrable Note or
Registrable Notes.
"Indenture" shall mean the Indenture, dated as of October 5,
2004, by and among the Issuer, the Guarantor and U.S. Bank National Association
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" shall have the meaning set forth in the
first introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
hereof.
"Issue Date" shall mean October 5, 2004, the date of original
issuance of the Notes.
"Issuer" shall have the meaning set forth in the first
introductory paragraph hereto and shall also include the Issuer's permitted
successors and assigns.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"Liquidated Damages" shall have the meaning set forth in
Section 4(a) hereof.
"Losses" shall have the meaning set forth in Section 7(a)
hereof.
"NASD" shall have the meaning set forth in Section 5(s)
hereof.
"Notes" shall have the meaning set forth in the second
introductory paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a)
hereof.
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"Participating Broker-Dealer" shall have the meaning set forth
in Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership,
joint venture, unincorporated association, joint stock company, trust, limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section
2(b) hereof.
"Private Exchange Notes" shall have the meaning set forth in
Section 2(b) hereof.
"Prospectus" shall mean 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, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the
second introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n)
hereof.
"Registrable Notes" shall mean each Note upon its original
issuance and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(iii) 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, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iii) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in
Section 4(a) hereof.
"Registration Statement" shall mean any registration statement
of the Issuer and the Guarantor covering any of the Registrable Notes filed with
the Commission under the Securities Act on the appropriate form, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
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"Requesting Participating Broker-Dealer" shall have the
meaning set forth in Section 2(b) hereof.
"Rule 144" shall mean 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 Commission
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" shall mean 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 Commission.
"Rule 415" shall mean 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 Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration" shall have the meaning set forth in
Section 3(a) hereof.
"Shelf Registration Statement" shall mean a Registration
Statement filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes and Private
Exchange Notes.
"Underwritten registration or underwritten offering" shall
mean a registration in which securities of the Issuer are sold to an underwriter
for reoffering to the public.
Section 2. Exchange Offer
(a) Subject to Section 3 hereof, the Issuer and the Guarantor
shall (i) file a Registration Statement (the "Exchange Offer Registration
Statement") within 90 days after the Issue Date with the Commission on an
appropriate registration form with respect to a registered offer (the "Exchange
Offer") to exchange any and all of the Registrable Notes for a like aggregate
principal amount of notes, together with the Guarantees endorsed thereon (the
"Exchange Notes") that are identical in all material respects to the Notes
(except that the Exchange Notes shall not contain terms with respect to transfer
restrictions or Liquidated Damages upon a Registration Default), (ii) use their
reasonable best efforts to cause the Exchange Offer Registration Statement to be
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declared effective under the Securities Act within 180 days after the Issue Date
and (iii) use their reasonable best efforts to consummate the Exchange Offer
within 210 days after the Issue Date. Upon the Exchange Offer Registration
Statement being declared effective by the Commission, the Issuer and the
Guarantor will offer the Exchange Notes in exchange for surrender of the Notes.
The Issuer and the Guarantor shall keep the Exchange Offer open for not less
than 30 days (or longer if required by applicable law) after the date notice of
the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Issuer and the Guarantor in writing that (i) any
Exchange Notes to be received by it will be acquired in the ordinary course of
its business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes in violation of the provisions of the Securities Act, (iii)
it is not an affiliate of the Issuer or the Guarantor as defined in Rule 405 of
the Securities Act or, if it is an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer, it is not engaged
in, and does not intend to engage in, a distribution of Exchange Notes, (v) if
such Holder is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Notes that were acquired as a result of market-making or
other trading activities, it will deliver a prospectus in connection with any
resale of such Exchange Notes and (vi) such Holder has full power and authority
to transfer the Notes in exchange for the Exchange Notes and that the Issuer and
the Guarantor will acquire good and unencumbered title thereto free and clear of
any liens, restrictions, charges or encumbrances and not subject to any adverse
claims.
(b) The Issuer, the Guarantor and the Initial Purchasers
acknowledge that the staff of the Commission has taken the position that any
broker-dealer that elects to exchange Notes that were acquired by such
broker-dealer for its own account as a result of market-making or other trading
activities for Exchange Notes in the Exchange Offer (a "Participating
Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the
Securities Act and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment resulting from the original offering of the
Notes).
The Issuer, the Guarantor and the Initial Purchasers also
acknowledge that the staff of the Commission has taken the position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Notes, without naming
the Participating Broker-Dealers or specifying the amount of Exchange Notes
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuer and the
Guarantor agree to use their reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective for a period necessary to comply
with applicable law and to enable satisfaction of prospectus delivery
requirements in connection with resales of the Exchange Notes, but in no event
more than 180 days after the date on which the Exchange Registration Statement
is declared effective, or such longer period if extended pursuant to any Delay
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Period in accordance with the penultimate paragraph of Section 5 hereof (such
period, the "Applicable Period"), or such earlier date as each Requesting
Participating Broker-Dealer shall have notified the Issuer in writing that such
Requesting Participating Broker-Dealer has resold all Exchange Notes acquired by
it in the Exchange Offer. The Issuer and the Guarantor shall include a plan of
distribution in such Exchange Offer Registration Statement that meets the
requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers or any Holder, as the case may be, holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of
an unsold allotment in an initial distribution, or if any Holder is not entitled
to participate in the Exchange Offer, the Issuer and the Guarantor upon the
request of any such Initial Purchaser or any such Holder, as the case may be,
shall simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to any such Initial Purchaser or any such Holder, as
the case may be, in exchange (the "Private Exchange") for such Notes held by the
Initial Purchasers or any such Holder, as the case may be, a like principal
amount of notes, together with the Guarantees endorsed thereon (the "Private
Exchange Notes"), of the Issuer that are identical in all material respects to
the Exchange Notes except that the Private Exchange Notes may be subject to
restrictions on transfer and bear a legend to such effect. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP
Service Bureau).
For each Note surrendered in the Exchange Offer, the Holder
will receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the Issuer and the Guarantor shall have no further registration
obligations other than the Issuer's and the Guarantor's continuing registration
obligations with respect to (i) Private Exchange Notes, (ii) Exchange Notes held
by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which
clause (c)(iii) of this Section 2 applies.
In connection with the Exchange Offer, the Issuer and the
Guarantor shall:
(1) mail or cause to be mailed to each Holder entitled
to participate in the Exchange Offer a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(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 shall remain open; and
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(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
and the Private Exchange, if any, the Issuer and the Guarantor shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn by the Holders pursuant to the Exchange Offer
and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each such Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Registrable Notes of
such Holder so accepted for exchange; provided that, in the case of any
Notes held in global form by a depositary, authentication and delivery
to such depositary of one or more replacement Notes in global form in
an equivalent principal amount thereto for the account of such Holders
in accordance with the Indenture shall satisfy such authentication and
delivery requirement.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture (in either case, with such changes as are necessary to
comply with any requirements of the Commission to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA and shall provide that (a) the Exchange Notes shall not
be subject to the transfer restrictions set forth in the Indenture and (b) 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 shall vote and consent
together on all matters requiring the vote of the Holders of the Exchange Notes,
the Private Exchange Notes and the Notes under the Indenture as one class and
that none of the Exchange Notes, the Private Exchange Notes or the Notes will
have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuer or the
Guarantor to effect the Exchange Offer, (ii) for any reason the Exchange Offer
is not consummated within 210 days of the Issue Date, (iii) any Holder, other
than the Initial Purchasers, is prohibited by law or the applicable
interpretations of the staff of the Commission from participating in the
Exchange Offer or, in the case of any Holder which participates in the Exchange
Offer, such Holder does not receive Exchange Notes on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
Issuer within the meaning of the Securities Act) or (iv) any Initial Purchaser
so requests with respect to Notes or Private Exchange Notes that have, or that
are reasonably likely to be determined to have, the status of unsold allotments
in an initial distribution (each such event referred to in clauses (i) through
(iv) of this sentence, a "Shelf Filing Event"), then the Issuer and the
Guarantor shall file a Shelf Registration pursuant to Section 3 hereof.
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Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuer and the Guarantor shall
file with the Commission a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 covering all of the Registrable Notes
not exchanged in the Exchange Offer, Private Exchange Notes and Exchange Notes
as to which Section 2(c)(iii) is applicable (the "Shelf Registration"). The
Issuer and the Guarantor shall use their reasonable best efforts to file with
the Commission the Shelf Registration as promptly as practicable. The Shelf
Registration shall be on an 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 shall not permit any securities other than the Registrable Notes to be
included in the Shelf Registration.
(b) The Issuer and the Guarantor shall use their reasonable
best efforts (x) to cause the Shelf Registration to be declared effective under
the Securities Act on or prior to the later of 210 calendar days after the Issue
Date or 120 days after the Shelf Registration is required to be filed with the
Commission and (y) to keep the Shelf Registration continuously effective under
the Securities Act for the period ending on the date which is two years from the
Issue Date, subject to extension pursuant to the penultimate paragraph of
Section 5 hereof (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 (i) the Effectiveness Period in respect of the Shelf Registration
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) the Issuer and the Guarantor may
suspend the effectiveness of the Shelf Registration Statement by written notice
to the Holders solely (A) as a result of the filing of a post-effective
amendment to the Shelf Registration Statement to incorporate annual audited
financial information with respect to the Issuer or the Guarantor, to the extent
required to be included therein where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the
related Prospectus or (B) to the extent and for so long as permitted by the
penultimate paragraph of Section 5.
(c) Supplements and Amendments. The Issuer and the Guarantor
agree to supplement or make amendments to the Shelf Registration Statement as
and when required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, 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.
Section 4. Liquidated Damages
(a) The Issuer, the Guarantor and the Initial Purchasers agree
that the Holders will suffer damages if the Issuer or the Guarantor
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 and the Guarantor
agree that if:
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(i) the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 90th day following the Issue
Date or, if that day is not a Business Day, the next day that is a
Business Day;
(ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the 180th day following the Issue Date or, if
that day is not a Business Day, the next day that is a Business Day;
(iii) the Exchange Offer is not consummated and the Shelf
Registration Statement is not declared effective on or prior to the
210th day gollowing the Issue Date, or, if that day is not a Business
Day, the next day that is a Business Day;
(iv) the Shelf Registration Statement is required to be filed
but is not declared effective by the later of 210 calendar days after
the Issue Date or 120 days after the Shelf Registration is required to
be filed with the Commission, or, if either such day is not a Business
Day, the next day that is a Business Day;
(v) the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, is declared effective but
thereafter ceases to be effective or usable as required hereunder
during the Applicable Period or the Effectiveness Period, as
applicable, except if the Shelf Registration Statement ceases to be
effective or usable as specifically permitted by the penultimate
paragraph of Section 5 hereof; or
(vi) the Private Exchange is not consummated and the Issuer and
the Guarantors fail to issue and deliver the Private Exchange Notes as
required under Section 2(b) hereof;
(each such event referred to in clauses (i) through (vi) a
"Registration Default"), liquidated damages in the form of additional
cash interest ("Liquidated Damages") will accrue on the affected Notes
and the affected Exchange Notes, as applicable. The rate of Liquidated
Damages will $0.05 per week per $1,000 in principal amount of affected
Notes and affected Exchange Notes, as applicable, for the first 90-day
period immediately following the occurrence of a Registration Default,
increasing by an additional $0.05 per week per $1,000 in principal
amount of affected Notes and affected Exchange Notes, as applicable,
with respect to each subsequent 90-day period up to a maximum amount of
additional interest of $0.25 per week per $1,000 in principal amount of
affected Notes and affected Exchange Notes, as applicable, from and
including the date on which any such Registration Default shall occur
to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all the
Notes and Exchange Notes otherwise become freely transferable by
Holders other than affiliates of the Issuer without further
registration under the Securities Act. If, after the cure of all
Registration Defaults then in effect, there is a subsequent
Registration Default, the rate of Liquidated Damages for such
Registration Default shall initially be $0.05 per week per $1,000 in
principal amount of affected Notes or affected Exchange Notes, as
applicable, regardless of the rate in effect with respect to any prior
Registration Default at the time of cure of such Registration Default
and shall increase in the manner and be subject to the maximum amounts
contained in the preceding sentence.
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Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Registrable Notes or Exchange Notes who is not
entitled to the benefits of the Shelf Registration Statement (i.e., such Holder
has not elected to include information and the Issuer and the Guarantor have
therefore excluded such Holder pursuant to Section 5 hereof) shall not be
entitled to Liquidated Damages with respect to a Registration Default that
pertains to the Shelf Registration Statement. Liquidated Damages shall be the
exclusive monetary remedy available to the Holders of the Registrable Notes with
respect to Registration Defaults.
(b) So long as Notes remain outstanding, the Issuer shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each April
1 and October 1 (each a "Damages Payment Date"), commencing with the first such
date occurring after any such Liquidated Damages commence to accrue, to Holders
to whom regular interest is payable on such Damages Payment Date with respect to
Notes that are Registrable Notes.
Section 5 Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuer and the Guarantor 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 and in connection with any Registration Statement filed by the
Issuer and the Guarantor hereunder, each of the Issuer and the Guarantor shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3
hereof, and use its 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 the Exchange
Offer 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 relating thereto, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuer and the
Guarantor 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, its counsel (if requested by such
Person and contact information is provided) 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 five Business Days prior to such filing or such
later date as is reasonable under the circumstances). The Issuer and
the Guarantor 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, its counsel, or the managing underwriters, if any, shall
reasonably object on a timely basis.
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(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer 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 with the provisions of
the Securities Act and the Exchange Act applicable to it with respect
to the disposition of all Notes 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, in each
case, in accordance with the intended methods of distribution set forth
in such Registration Statement or Prospectus, as so amended; provided
that none of the foregoing shall be required during the Delay Period.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer
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 relating thereto from whom the Issuer or the Guarantor has
received timely written notice that such Broker-Dealer will be a
Participating Broker-Dealer in the applicable Exchange Offer, notify
the selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel (if such counsel is
known to the Issuer and contact information is provided) and the
managing underwriters, if any, as promptly as possible, and, if
requested by any such Person, 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 request, obtain, at the sole expense of the Issuer,
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 Commission 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 Issuer or the Guarantor contained in any agreement
(including any underwriting agreement) contemplated by Section 5(m)(i)
hereof cease to be true and correct in all material respects, (iv) of
the receipt by the Issuer or the Guarantor 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 for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, (v)
of the happening of any event, the existence of any condition or any
information becoming known to the Issuer or the Guarantor 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
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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 circumstances under which they were made,
not misleading, and (vi) of the Issuer's and the Guarantor's
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer 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, 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, as the case may be, for sale in any jurisdiction, and,
if any such order is issued, to use its reasonable best efforts to
obtain the withdrawal of any such order at the earliest practicable
date.
(e) Subject to the penultimate paragraph of Section 5, if (1) a
Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer 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 and if reasonably requested
by the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes covered
by such Registration Statement or any Participating Broker-Dealer, as
the case may be, (i) as promptly as commercially practicable,
incorporate in such Registration Statement or Prospectus a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders or any Participating
Broker-Dealer, as the case may be (based upon advice of counsel),
determine is reasonably necessary 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 Issuer or the
Guarantor has received notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment; provided,
however, that the Issuer and the Guarantor shall not be required to
take any action hereunder that would, in the written opinion of counsel
to the Issuer and the Guarantor, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer 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 or each such Participating
Broker-Dealer, as the case may be, who so requests, its counsel (if
requested by any such Person and contact information is provided) and
each managing underwriter, if any, at the sole expense of the Issuer,
one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including
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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 the Exchange Offer
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 each selling Holder of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, its respective
counsel, and the underwriters, if any, at the sole expense of the
Issuer, 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, the Issuer and the Guarantor 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 Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use its 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 its respective counsel (if
requested by any such Person and contact information is provided) in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes or
Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
managing underwriter or underwriters reasonably request; provided,
however, that where Exchange Notes or Registrable Notes are offered
other than through an underwritten offering, the Issuer and the
Guarantor agree to use their reasonable best efforts to cause counsel
to the Issuer and the Guarantor 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 such Exchange Notes or Registrable
Notes covered by the applicable Registration Statement; provided,
however, that neither the Issuer nor the Guarantor 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 excess of a
nominal dollar amount in any such jurisdiction where it is not then so
subject.
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(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 ("DTC"), and enable such Registrable Notes to be in such
denominations and registered in such names as the managing underwriter
or underwriters, if any, or selling Holders may request.
(j) Use its reasonable best efforts to cause the Registrable
Notes or Exchange Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes or Exchange Notes,
except as may be required solely as a consequence of the nature of such
selling Holder's business, in which case the Issuer and the Guarantor
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 the Exchange Offer
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 Section 5(c)
(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject
to Section 5(a) and the penultimate paragraph of this Section 5) file
with the Commission, at the sole expense of the Issuer, 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) 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 in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for the Registrable
Notes.
(m) 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 Issuer, the Guarantor and their
respective subsidiaries, as then conducted (including any acquired
business, properties or entity, if applicable), and the ▇▇▇▇▇▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers and guarantors to underwriters in underwritten
offerings of debt securities similar to the Notes, and confirm the same
in writing if and when requested; (ii) use its reasonable best efforts
to obtain the written opinions of counsel to the Issuer and the
Guarantor 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 reasonably requested in underwritten offerings and such
other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use its reasonable best efforts to
obtain "cold comfort" letters and updates thereof in form, scope
underwriters from the independent certified public accountants of the
Issuer and the Guarantor (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuer or the
Guarantor or of any business acquired by the Issuer or the Guarantor
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 (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; provided that the Issuer and
the Guarantor shall not be required to provide indemnification to any
underwriter selected in accordance with the provisions of Section 9
hereof with respect to information relating to such underwriter
furnished in writing to the Issuer and the Guarantor by or on behalf of
such underwriter expressly for inclusion in such Registration
Statement. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer 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"), upon prior request, at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Issuer, the
Guarantor 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 Issuer, the Guarantor and their
respective subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement
and Prospectus (the "Information"). Each Inspector shall agree in
writing that it will keep the Records and Information confidential and
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that it will not disclose, or use in connection with any market
transactions in violation of any applicable securities laws, any
Records and Information that the Issuer or the Guarantor determines, in
good faith, to be confidential and that the Issuer or the Guarantor
notifies the Inspectors in writing are confidential unless (i) the
disclosure of such Records or Information is necessary to avoid or
correct a misstatement or omission in such Registration Statement or
Prospectus, (ii) the release of such Records or Information is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such Records or Information is
necessary or advisable in the opinion of counsel for an Inspector 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
the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iv) such Records or
Information has been made generally available to the public; provided,
however, that (i) each Inspector shall agree to use reasonable best
efforts to provide notice to the Issuer and the Guarantor of the
potential disclosure of any such Records or Information by such
Inspector pursuant to clause (i), (ii) or (iii) of this sentence to
permit the Issuer or the Guarantor to obtain a protective order (or
waive the provisions of this paragraph (n)) and (ii) each such
Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such Records or Information (if
practicable) to the extent such action is otherwise not inconsistent
with, an impairment of or in derogation of the rights and interests of
the Holder or any Inspector.
(o) 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 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 or Exchange Notes,
as applicable, 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 Commission to enable such indenture to be so qualified
in a timely manner.
(p) Comply in all material respects with all applicable rules
and regulations of the Commission and make generally available to the
Issuer's and the Guarantor's securityholders, as applicable, 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 or Exchange 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 Issuer or the Guarantor, as
applicable, after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
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(q) Upon the request of a Holder, upon consummation of the
Exchange Offer or a Private Exchange, use its reasonable best efforts
to obtain an opinion of counsel to the Issuer and the Guarantor, 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 and the Guarantor, enforceable against the Issuer and the
Guarantor in accordance with their respective terms, subject to
customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuer (or to such other Person as directed by the Issuer) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may
be, ▇▇▇▇, 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 the case may be; provided that
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) 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").
(t) Use its reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Issuer and the Guarantor may require each seller of
Registrable Notes or Exchange Notes as to which any registration is being
effected to furnish to the Issuer and the Guarantor such information regarding
such seller and the distribution of such Registrable Notes or Exchange Notes as
the Issuer may, from time to time, reasonably request. The Issuer and the
Guarantor may exclude from such registration the Registrable Notes of any seller
so long as such seller fails to furnish such information within a reasonable
time after receiving such request and in the event of such an exclusion, the
Issuer and the Guarantor shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) 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 Issuer and the Guarantor all information required to be disclosed in order
to make any information previously furnished to the Issuer and the Guarantor by
such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Issuer or the
Guarantor, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such
Holder, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the Issuer or
the Guarantor, or (ii) in the event that such reference to such Holder by name
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or otherwise is not required by the Securities Act or any similar federal
statute then in force, the deletion of the reference to such Holder in any
amendment or supplement to the applicable Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon receipt by such Holder or Participating Broker-Dealer, as the case
may be, of any notice from the Issuer (x) of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v) hereof, (y)
that the board of directors of the Issuer (the "Board of Directors") has
resolved that the Issuer has a bona fide business purpose for doing so, or (z)
that the board of directors of the Guarantor (the "Guarantor Board of
Directors") has resolved that the Guarantor has a bona fide business purpose for
doing so, then the Issuer and the Guarantor may delay the filing or the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement (if not then filed or effective, as applicable) and shall
not be required to maintain the effectiveness thereof or amend or supplement the
Exchange Offer Registration Statement or the Shelf Registration Statement, in
all cases, for a period (a "Delay Period") expiring upon the earlier to occur of
(i) in the case of the immediately preceding clause (x), 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 Issuer or the Guarantor that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto or (ii) in the case of the immediately preceding clauses
(y) or (z), the date which is the earlier of (A) the date on which such business
purpose ceases to interfere with the Issuer's or the Guarantor's, as the case
may be, obligations to file or maintain the effectiveness of any such
Registration Statement pursuant to this Agreement or (B) 60 days after the
Issuer or the Guarantor, as the case may be, notifies the Holders of such good
faith determination. There shall not be more than 60 days of Delay Periods
during any 12-month period. Each of the Effectiveness Period and the Applicable
Period, if applicable, shall be extended by the number of days during any Delay
Period. Any Delay Period will not alter the obligations of the Issuer or the
Guarantor to pay Liquidated Damages under the circumstances set forth in Section
4 hereof.
In the event of any Delay Period pursuant to clauses (y) or
(z) of the preceding paragraph, notice shall be given to each Holder of
Registrable Notes and each Participating Broker-Dealer as soon as practicable
after the Board of Directors or the Guarantor Board of Directors, as the case
may be, makes such a determination of the need for a Delay Period and shall
advise the recipient thereof of the agreement of such Holder provided in the
next succeeding sentence. Each Holder or Participating Broker-Dealer, by his
acceptance of any Registrable Note, agrees that during any Delay Period, each
Holder or Participating Broker-Dealer will discontinue disposition of such Notes
or Exchange 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.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer and the Guarantor (other than any
underwriting discounts or commissions) shall be borne by the Issuer, whether or
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not the Exchange Offer Registration Statement or the Shelf Registration is filed
or becomes effective or the Exchange Offer is consummated, 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 (x) where the holders of Registrable Notes are located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration or in the case of 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 DTC and
of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuer and the Guarantor and reasonable fees and disbursements of one special
counsel for all of the sellers of Registrable Notes (exclusive of any counsel
retained pursuant to Section 7 hereof) selected by the Holders of a majority in
aggregate principal amount of Notes, Exchange Notes, and Private Exchange Notes
being registered and reasonably satisfactory to the Issuer and Guarantor, (v)
fees and disbursements of all independent certified public accountants referred
to in Section 5(m)(iii) hereof (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Issuer or the
Guarantor desires such insurance, (vii) fees and expenses of all other Persons
retained by the Issuer or the Guarantor, (viii) internal expenses of the Issuer
and the Guarantor (including, without limitation, all salaries and expenses of
officers and employees of the Issuer and the Guarantor performing legal or
accounting duties), (ix) the expense of any annual audit, (x) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement. Notwithstanding the foregoing or anything to the
contrary, each Holder shall pay all underwriting discounts and commissions of
any underwriters with respect to any Registrable Notes sold by or on behalf of
it.
Section 7. Indemnification
(a) The Issuer and the Guarantor, jointly and severally, agree
to indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
each Person, if any, who controls any such Person within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, the agents,
employees, officers and directors of each Holder and each such Participating
Broker-Dealer and the agents, employees, officers and directors of any such
controlling Person (each, a "Participant") from and against any and all losses,
liabilities, claims, damages and expenses (including, but not limited to,
reasonable attorneys' fees and any and all reasonable out-of-pocket expenses
actually incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
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reasonable amounts paid in settlement of any claim or litigation (in the manner
set forth in clause (c) below)) (collectively, "Losses") to which they or any of
them may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Issuer 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 case of the Prospectus, in the light of the circumstances under which they
were made, not misleading, provided that the foregoing indemnity shall not be
available to any Participant insofar as such Losses are caused by, arise out of
or are based upon any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information relating to
such Participant furnished to the Issuer or the Guarantor in writing by or on
behalf of such Participant expressly for use therein. This indemnity agreement
will be in addition to any liability that the Issuer or the Guarantor may
otherwise have, including, but not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuer, the Guarantor, each Person, if any, who
controls the Issuer or the Guarantor within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their
respective agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling Person from and against any
Losses to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuer 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 case of the Prospectus, in the
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that any such Loss arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
relating to such Participant furnished in writing to the Issuer or the Guarantor
by or on behalf of such Participant expressly for use therein.
(c) After receipt by an indemnified party under subsection 7(a)
or 7(b) above of notice of the commencement of any action, suit or proceeding
(collectively, an "action"), such indemnified party shall promptly, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in w
riting of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
material respect by such failure). In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
of such action, the indemnifying party will be entitled to participate in such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
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indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties such that representation by the same counsel would be
inappropriate (in which case the indemnifying parties shall not have the right
to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the fees and expenses of more than one counsel (together
with appropriate local counsel) at any time for all indemnified parties in
connection with any one action or separate but substantially similar or related
actions arising in the same jurisdiction out of the same general allegations or
circumstances. Any such separate firm for the Participants shall be designated
in writing by Participants who sold a majority in interest of Registrable Notes
sold by all such Participants and shall be reasonably acceptable to the Issuer
and any such separate firm for the Issuer, the Guarantor, their respective
affiliates, officers, directors, representatives, employees and agents and such
control Person of the Issuer or the Guarantor shall be designated in writing by
the Issuer and shall be reasonably acceptable to the Holders. An indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent, which consent may not be unreasonably withheld or
delayed. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party, in
form and substance reasonably satisfactory to such indemnified party, from all
liability on claims that are the subject matter of such proceeding and does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in this Section 7 is for any reason held
to be unavailable from the indemnifying party for any Losses referred to
therein, or is insufficient to hold harmless a party indemnified under this
Section 7 for any Losses referred to therein, each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
and the Guarantor, on the one hand, and each Participant, on the other hand,
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shall be deemed to be in the same proportion as (x) the total proceeds from the
sale of the Notes to the Initial Purchasers (net of discounts and commissions
but before deducting expenses) received by the Issuer and the Guarantor are to
(y) the total net profit received by such Participant in connection with the
sale of the Registrable Notes. 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 or the Guarantor
or such Participant and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged 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
or by any other method of allocation that does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7, (i) in no case shall any
Participant be required to contribute any amount in excess of the amount by
which the net profit received by such Participant in connection with the sale of
the Registrable Notes exceeds the amount of any damages that such Participant
has otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) 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. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim for contribution may be made against
another party or parties under this Section 7, notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under this
Section 7 for purposes of indemnification. Anything in this section to the
contrary notwithstanding, no party shall be liable for contribution with respect
to any action or claim settled without its written consent, provided, however,
that such written consent was not unreasonably withheld.
Section 8. Rules 144 and 144A
Each of the Issuer and the Guarantor (so long as it acts as
such) covenants that, so long as Registrable Notes remain outstanding, it will
file the reports required, if any, to be filed by it under the Securities Act
and the Exchange Act 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
Guarantor (so long as it acts as such) is not required to file such reports, it
will, upon the request of any Holder or beneficial owner of Registrable Notes,
make available such information necessary to permit sales pursuant to Rule 144A
under the Securities Act. Each of the Issuer and the Guarantor further covenants
that for so long as any Registrable Notes remain outstanding it will take such
further action as any Holder of Registrable Notes may reasonably request 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 (a) Rule 144(k) and Rule 144A under the Securities Act, as such
Rules may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission.
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Section 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 shall be reasonably acceptable
to the Issuer.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder if such Holder does not (a) agree 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) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. Each of the Issuer and the
Guarantor has not, as of the date hereof, and shall not have, after the date of
this Agreement, entered into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not conflict with and are not
inconsistent with, in any material respect, the rights granted to the holders of
any of the Issuer's or the Guarantor's other issued and outstanding securities
under any such agreements. Each of the Issuer and the Guarantor has not entered
and will not enter into any agreement with respect to any of its securities
which will grant to any Person piggy-back registration rights with respect to
any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer and the
Guarantor shall not, 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 except pursuant to a written
agreement duly signed and delivered by (I) the Issuer and the Guarantor and (II)
(A) the Holders of not less than a majority in aggregate principal amount of the
then outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Notes held by all Participating Broker-Dealers; provided, however, that Section
7 and this Section 10(c) may not be amended, modified or supplemented except
pursuant to a written agreement duly signed and delivered by the Issuer, the
Guarantor and each Holder and each Participating Broker-Dealer (including any
Person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification, supplement or waiver.
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
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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 pursuant to such Registration Statement.
(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 telecopier:
(i) 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.
(ii) if to the Issuer or the Guarantor, at the address as
follows:
▇▇▇▇▇'▇ Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇ & Bird LLP
Bank of America Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
(iii) if to the Initial Purchasers, at the addresses as
follows:
UBS Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Yield Capital Markets
With a copy at such address to the attention of
Legal Department, fax number (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
-25-
Attention: Registration Department
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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; when receipt
is acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address 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, the Holders and the Participating Broker-Dealers; 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; provided further that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Notes or Exchange Notes in violation of the terms of the Purchase Agreement or
the Indenture.
(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 INTERNAL LAWS OF THE STATE OF NEW YORK,
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INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(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 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 any of 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 and beneficial owners
of Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(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 Holders
on the one hand and the Issuer and the Guarantor 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.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
▇▇▇▇▇'▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name:
Title:
▇▇▇▇▇'▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, General
Counsel and Secretary
UBS SECURITIES, LLC,
By: /s/ ▇.▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate Director
▇▇▇▇▇▇▇, SACHS & CO.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
-----------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President