Five Star Quality Care, Inc. Registration Rights Agreement
Exhibit
4.2
Five
Star Quality Care, Inc.
October
18, 2006
This
Registration Rights Agreement
(the
“Agreement”)
is
made and entered into as of October 18, 2006, by and among Five Star Quality
Care, Inc., a Maryland corporation (the “Company”),
each
of the entities listed on Schedule
A
hereto
(each a “Guarantor,”
and,
collectively, the “Guarantors”)
and
UBS Securities LLC and the other Initial Purchasers named in the Purchase
Agreement referred to below (collectively, (the “Initial
Purchasers”)
pursuant to that certain Purchase Agreement, dated October 12, 2006 (the
“Purchase
Agreement”),
among
the Company, the Guarantors and the Initial Purchasers.
In
order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company and the Guarantors (collectively, the “Issuers”)
have
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under
the
Purchase Agreement. The terms “herein,” “hereof,” “hereto,” “hereinafter” and
similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence
or
other subdivision of this Agreement.
The
Issuers, jointly and severally, agree with the Initial Purchasers (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including any Initial Purchaser) from time to time of the Covered Securities
(as defined herein) (each of the foregoing a “Holder”
and,
together, the “Holders”),
as
follows:
1. Definitions.
Capitalized terms used herein without definition shall have their respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
(a) “Additional
Filing Deadline Date”
has
the
meaning set forth in Section 2(e) hereof.
(b) “additional
interest”
has
the
meaning set forth in Section 2(e) hereof.
(c) “Additional
Interest Accrual Period”
has
the
meaning set forth in Section 2(e) hereof.
(d) “Additional
Interest Amount”
has
the
meaning set forth in Section 2(e) hereof.
(e) “Additional
Interest Payment Date”
means
each April 15 and October 15 of each year.
(f) “Affiliate”
means,
with respect to any specified person, an “affiliate,” as defined in Rule 144, of
such person.
(g) “Amendment
Effectiveness Deadline Date”
has
the
meaning set forth in Section 2(d) hereof.
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(h) “Automatic
Shelf Registration Statement”
has
the
meaning ascribed to it in Rule 405.
(i) “Business
Day”
means
each day on which the New York Stock Exchange is open for trading.
(j) “Claim”
has
the
meaning set forth in Section 10(o) hereof.
(k) “Common
Stock”
means
the common shares, $0.01 par value per share, of the Company, together with
the
rights evidenced by such Common Stock to the extent provided in the rights
agreement, dated as of March 10, 2004, by and between the Company and ▇▇▇▇▇
Fargo Bank, National Association, as successor to Equiserve Trust Company,
N.A.,
as rights agent, and any other shares of capital stock as may constitute “Common
Stock” for purposes of the Indenture, including the Underlying Common
Stock.
(l) “Conversion
Rate”
has
the
meaning ascribed to it in the Indenture.
(m) “Covered
Security”
has
the
meaning set forth in the definition of Registrable Securities
herein.
(n) “Effectiveness
Deadline Date”
has
the
meaning set forth in Section 2(a) hereof.
(o) “Effectiveness
Period”
means
the period that begins on the date of original issuance of the Notes and ends
on
the date there are no outstanding Registrable Securities.
(p) “Event”
has
the
meaning set forth in Section 2(e) hereof.
(q) “Event
Date”
has
the
meaning set forth in Section 2(e) hereof.
(r) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
(s) “Filing
Deadline Date”
has
the
meaning set forth in Section 2(a) hereof.
(t) “Form
S-1”
means
Form S-1 under the Securities Act.
(u) “Form
S-3”
means
Form S-3 under the Securities Act.
(v) “Fundamental
Change Repurchase Date”
has
the
meaning ascribed to it in the Indenture.
(w) “Guarantor”
has
the
meaning set forth in the preamble hereto.
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(x) “Holder”
has
the
meaning set forth in the preamble hereto.
(y) “Holder
Indemnified Party”
has
the
meaning set forth in Section 6(a) hereof.
(z) “Holder
Information”
has
the
meaning set forth in Section 6(b) hereof.
(aa) “Indemnified
Party”
has
the
meaning set forth in Section 6(c) hereof.
(bb) “Indemnifying
Party”
has
the
meaning set forth in Section 6(c) hereof.
(cc) “Indenture”
means
the Indenture, dated as of October 18, 2006, among the Company, the Guarantors
and the Trustee, pursuant to which the Notes are being issued.
(dd) “Initial
Purchasers”
has
the
meaning set forth in the preamble hereto.
(ee) “Initial
Shelf Registration Statement”
has
the
meaning set forth in Section 2(a) hereof.
(ff) “Issue
Date”
means
October 18, 2006.
(gg) “Issuer
Indemnified Party”
has
the
meaning set forth in Section 6(b) hereof.
(hh) “Issuers”
has
the
meaning set forth in the preamble hereto.
(ii) “Material
Event”
has
the
meaning set forth in Section 3(k) hereof.
(jj) “Notes”
means
the 3.75% Convertible Senior Notes due 2026 of the Company to be purchased
pursuant to the Purchase Agreement.
(kk) “Notice
and Questionnaire”
means
a
written notice and questionnaire delivered to the Company containing
substantially the information called for by the Selling Securityholder Notice
and Questionnaire attached as Annex A to the Offering Memorandum of the Company,
dated October 12, 2006, relating to the Notes.
(ll) “Notice
Holder”
means,
on any date, any Holder that has delivered a Notice and Questionnaire to the
Company on or prior to such date, so long as all of such Holder’s Registrable
Securities that have been registered for resale pursuant to a Notice and
Questionnaire have not been sold in accordance with a Shelf Registration
Statement.
(mm) “Option
Purchase Date”
has
the
meaning ascribed to it in the Indenture.
(nn) “Proceeding”
has
the
meaning set forth in Section 6(c) hereof.
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(oo) “Prospectus”
means
each prospectus relating to any Shelf Registration Statement, including all
supplements and amendments to such prospectus, in each case in the form
furnished pursuant to this Agreement by the Company to Holders or filed by
the
Company with the SEC pursuant to Rule 424 or as part of such Shelf Registration
Statement, as the case may be, and in each case including all materials, if
any,
incorporated by reference or deemed to be incorporated by reference in such
prospectus.
(pp) “Purchase
Agreement”
has
the
meaning set forth in the preamble hereof.
(qq) “Purchase
at Holder’s Option”
has
the
meaning ascribed to it in the Indenture.
(rr) “Record
Date”
means,
(i) April 1, with respect to an Additional Interest Payment Date that occurs
on
April 15 and (ii) October 1, with respect to an Additional Interest Payment
Date
that occurs on October 15.
(ss) “Record
Holder”
means,
with respect to an Additional Interest Payment Date relating to a Registrable
Security for which any Additional Interest Amount has accrued, a Notice Holder
that was the holder of record of such Registrable Security at the close of
business on the Record Date relating to such Additional Interest Payment
Date.
(tt) “Redemption”
has
the
meaning ascribed to it in the Indenture.
(uu) “Redemption
Date”
has
the
meaning ascribed to it in the Indenture.
(vv) “Registrable
Securities”
means
the Notes, until such Notes have been converted into the Underlying Common
Stock, and, at all times, the Subsidiary Guarantees, the Underlying Common
Stock
and any securities into or for which such Underlying Common Stock has been
converted or exchanged, and any security issued with respect thereto upon any
stock dividend, split or similar event (each of the foregoing, a “Covered
Security”)
until,
in the case of any such security, the earliest of:
(i) the
date
on which such security has been effectively registered under the Securities
Act
and disposed of in accordance with the Registration Statement relating
thereto;
(ii) the
date
on which such security has been publicly sold pursuant to Rule 144 or any
successor provision thereto; or
(iii) the
second anniversary of the last date on which the Notes are issued to the Initial
Purchasers.
(ww) “Registration
Expenses”
has
the
meaning set forth in Section 5 hereof.
(xx) “Registration
Statement”
means
each registration statement, under the Securities Act, of the Company that
covers any of the Registrable Securities pursuant to
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this
Agreement, including amendments and supplements to such registration statement
and including all post-effective amendments to, all exhibits of, and all
materials incorporated by reference or deemed to be incorporated by reference
in, such registration statement, amendment or supplement.
(yy) “Repurchase
Upon Fundamental Change”
has
the
meaning ascribed to it in the Indenture.
(zz) “Rule
144”
means
Rule 144 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.
(aaa) “Rule
144A”
means
Rule 144A 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.
(bbb) “Rule
405”
means
Rule 405 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.
(ccc) “Rule
415”
means
Rule 415 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.
(ddd) “Rule
424”
means
Rule 424 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.
(eee) “Rule
430B”
means
Rule 430B 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.
(fff) “Rule
456”
means
Rule 456 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.
(ggg) “Rule
457”
means
Rule 457 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.
(hhh) “SEC”
means
the Securities and Exchange Commission.
(iii) “Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
(jjj) “Shelf
Registration Statement”
means
the Initial Shelf Registration
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Statement
and any Subsequent Shelf Registration Statement.
(kkk) “Subsequent
Shelf Registration Statement”
has
the
meaning set forth in Section 2(b) hereof.
(lll) “Subsequent
Shelf Registration Statement Effectiveness Deadline Date”
has
the
meaning set forth in Section 2(d) hereof.
(mmm) “Subsidiary
Guarantee”
has
the
meaning ascribed to it in the Indenture.
(nnn) “Suspension
Notice”
has
the
meaning set forth in Section 3(k) hereof.
(ooo) “Suspension
Period”
has
the
meaning set forth in Section 3(k) hereof.
(ppp) “TIA”
means
the Trust Indenture Act of 1939, as amended.
(qqq) “Trustee”
means
U.S. Bank National Association, the trustee under the Indenture.
(rrr) “Underlying
Common Stock”
means
the Common Stock issuable upon the conversion of the Notes together with the
rights, if any, evidenced by such Common Stock to the extent provided in the
rights agreement, dated as of March 10, 2004, by and between the Company and
▇▇▇▇▇ Fargo Bank, National Association, as successor to Equiserve Trust Company,
N.A., as rights agent.
2. Shelf
Registration.
(a) The
Issuers shall prepare and file, or cause to be prepared and filed, with the
SEC,
as soon as practicable but in any event by the date (the “Filing
Deadline Date”)
that
is ninety (90) days after the Issue Date, a Registration Statement (the
“Initial
Shelf Registration Statement”)
for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
registering the resale from time to time by Holders thereof of all of the
Registrable Securities (or, if registration of Registrable Securities not held
by Notice Holders is not permitted by the rules and regulations of the SEC,
then
registering the resale from time to time by Notice Holders of their Registrable
Securities). The Initial Shelf Registration Statement shall provide for the
registration of such Registrable Securities for resale by such Holders in
accordance with any reasonable method of distribution elected by the Holders.
In
no event shall the Initial Shelf Registration Statement be filed with the SEC
prior to completion of the offering of the Notes contemplated by the Purchase
Agreement. The Issuers shall use its reasonable best efforts to (i) cause the
Initial Shelf Registration Statement to become effective under the Securities
Act as promptly as practicable but in any event by the date (the “Effectiveness
Deadline Date”)
that
is one hundred eighty (180) days after the Issue Date and (ii) keep the Initial
Shelf Registration Statement (and any Subsequent Shelf Registration Statement
(as hereinafter defined)) continuously effective under the Securities Act until
the expiration of the Effectiveness Period. At the time the Initial Shelf
Registration
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Statement
becomes effective under the Securities Act, each Holder that became a Notice
Holder on or before the date of such effectiveness shall be named as a selling
securityholder in the Initial Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of Registrable Securities in accordance with applicable
law.
(b) If,
for
any reason, at any time during the Effectiveness Period any Shelf Registration
Statement ceases to be effective under the Securities Act, or ceases to be
usable for the purposes contemplated hereunder, the Issuers shall use their
reasonable best efforts to promptly cause such Shelf Registration Statement
to
become effective under the Securities Act (including obtaining the prompt
withdrawal of any order suspending the effectiveness of such Shelf Registration
Statement), and in any event shall, within thirty (30) days of such cessation
of
effectiveness, (i) amend such Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement or (ii) file an additional
Registration Statement (a “Subsequent
Shelf Registration Statement”)
for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
registering the resale from time to time by Holders thereof of all securities
that are Registrable Securities as of the time of such filing (or, if
registration of Registrable Securities not held by Notice Holders is not
permitted by the rules and regulations of the SEC, then registering the resale
from time to time by Notice Holders of their securities that are Registrable
Securities as of the time of such filing). If a Subsequent Shelf Registration
Statement is filed, the Issuers shall use their reasonable best efforts to
(A)
cause such Subsequent Shelf Registration Statement to become effective under
the
Securities Act as promptly as practicable after such filing, but in no event
later than the Subsequent Shelf Registration Statement Effectiveness Deadline
Date and (B) keep such Subsequent Shelf Registration Statement (or another
Subsequent Shelf Registration Statement) continuously effective until the end
of
the Effectiveness Period.
Each
such Subsequent Shelf Registration Statement, if any, shall provide for the
registration of such Registrable Securities for resale by such Holders in
accordance with the reasonable method of distribution indicated by the Holders
in their Notice and Questionnaires (provided, however, that in no event will
such methods of distribution take the form of an underwritten offering of
Registrable Securities without the Company’s prior written consent, which the
Company may withhold in its sole discretion).
(c) Subject
to Section 2(d)(i)(A), the Issuers shall supplement and amend any Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Issuers for such Shelf
Registration Statement, if required by the Securities Act or, if necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading, as reasonably requested by any Initial Purchaser or by
the
Trustee on behalf of the Holders of the Registrable Securities covered by such
Shelf Registration Statement.
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(d) (i) Each
Holder of Registrable Securities agrees that, if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
3(k). Each Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a completed and executed Notice and Questionnaire to the
Company prior to any attempted or actual distribution of Registrable Securities
under a Shelf Registration Statement. With
respect to any Holder who delivers a completed and executed Notice and
Questionnaire after the date the Initial Shelf Registration Statement becomes
effective, the Company shall, within ten (10) business days after the date
such
Holder became a Notice Holder (or within such longer period permitted by clause
(E) below):
(A) file
with
the SEC a supplement to the related Prospectus (or, if required by applicable
law, a post-effective amendment to the Shelf Registration Statement or a
Subsequent Shelf Registration Statement), and all other document(s), in each
case as is required under the Securities Act and the rules and regulations
of
the SEC so that such Notice Holder is named as a selling securityholder in
a
Shelf Registration Statement and the related Prospectus in such a manner as
to
permit such Notice Holder to deliver a Prospectus to purchasers of the
Registrable Securities in accordance with the Securities Act; provided,
however,
that,
if a post-effective amendment or a Subsequent Shelf Registration Statement
is
required by the rules and regulations of the SEC in order to permit resales
by
such Notice Holder, the Issuers shall not be required to file more than one
(1)
post-effective amendment or Subsequent Shelf Registration Statement for such
purpose in any ninety (90) day period;
(B) if,
pursuant to Section 2(d)(i)(A), the Issuers shall have filed a post-effective
amendment to the Shelf Registration Statement or filed a Subsequent Shelf
Registration Statement, the Issuers shall use their reasonable best efforts
to
cause such post-effective amendment or Subsequent Shelf Registration Statement,
as the case may be, to become effective under the Securities Act as promptly
as
practicable, but in any event by the date (the “Amendment
Effectiveness Deadline Date,”
in
the
case of a post-effective amendment, and the “Subsequent
Shelf Registration Statement Effectiveness Deadline Date,”
in
the
case of a Subsequent Shelf Registration Statement) that is ninety (90) days
after the date such post-effective amendment or Subsequent Shelf Registration
Statement, as the case may be, is required by this Section 2(d) to be filed
with
the SEC;
(C) the
Issuers shall provide such Notice Holder, upon request, with a reasonable number
of copies of any documents filed pursuant to clause (A) above;
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(D) the
Issuers shall notify such Notice Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment or
Subsequent Shelf Registration Statement filed pursuant to clause (A)
above;
(E) if
such
Holder became a Notice Holder during a Suspension Period, or a Suspension Period
is put into effect within ten (10) Business Days after the date such Holder
became a Notice Holder, the Issuers shall so inform such Notice Holder and
shall
take the actions set forth in clauses (A), (B), (C) and (D) above within ten
(10) Business Days after expiration of such Suspension Period in accordance
with
Section 3(k); and
(F) if,
under
applicable law, the Issuers have more than one option as to the type or manner
of making any such filing, the Issuers shall make the required filing or filings
in the manner or of a type that is reasonably expected to result in the earliest
availability of a Prospectus for effecting resales of Registrable Securities
in
accordance with the Securities Act.
(ii) Notwithstanding
anything contained herein to the contrary, the Issuers shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Shelf Registration Statement or related Prospectus;
provided,
however,
that
any Holder that becomes a Notice Holder (regardless of when such Holder became
a
Notice Holder) shall be named as a selling securityholder in a Shelf
Registration Statement or related Prospectus in accordance with the requirements
of this Section 2(d) or Section 2(a), as applicable.
(e) The
parties hereto agree that the Holders of Registrable Securities will suffer
damages, and that it would not be feasible to ascertain the extent of such
damages with precision, if:
(i) the
Initial Shelf Registration Statement has not been filed with the SEC on or
prior
to the Filing Deadline Date;
(ii) the
Initial Shelf Registration Statement has not become effective under the
Securities Act on or prior to the Effectiveness Deadline Date;
(iii) either
a
supplement to a Prospectus, a post-effective amendment or a Subsequent Shelf
Registration Statement is required to be filed with the SEC and fails to be
filed with the SEC within the prescribed period and in the manner set forth
in
Section 2(d) (the date such filing is required to be made being an “Additional
Filing Deadline Date”)
or, in
the case of a post-effective amendment or a Subsequent Shelf Registration
Statement, such post-effective amendment or Subsequent Registration Statement
does not become effective under the Securities
-9-
Act
by the Amendment Effectiveness Deadline Date or the Subsequent Shelf
Registration Statement Effectiveness Deadline Date, as the case may
be;
(iv) the
Initial Shelf Registration Statement or any Subsequent Registration Statement
is
filed with the SEC and becomes effective under the Securities Act but shall
thereafter cease to be effective (without being succeeded immediately by a
new
Registration Statement that is filed and immediately becomes effective under
the
Securities Act) or usable under the Securities Act for the offer and sale of
Registrable Securities in the manner contemplated by this Agreement for a period
of time (including any Suspension Period) which shall exceed forty-five (45)
days in the aggregate in any three (3) month period or ninety (90) days in
the
aggregate in any twelve (12) month period;
or
(v) any
Registration Statement or amendment thereto, at the time it becomes effective
under the Securities Act, or any Prospectus relating thereto, at the time it
is
filed with the SEC or, if later, at the time the Registration Statement to
which
such Prospectus relates becomes effective under the Securities Act, shall fail
to name each Notice Holder as a selling securityholder in such a manner as
to
permit such Notice Holder to sell its Registrable Securities pursuant to such
Registration Statement and Prospectus in accordance with the Securities Act,
which Notice Holder was required, pursuant to the terms of this Agreement,
to be
so named (it being understood that, without limitation, naming such Notice
Holder in a manner that permits such Notice Holder to sell only a portion of
such Notice Holder’s Registrable Securities referenced in such Notice Holder’s
Notice and Questionnaire shall be deemed to be an “Event” (as defined below) for
purposes of this clause (v)).
Each
of
the events of a type described in any of the foregoing clauses (i) through
(v)
of this Section 2(e) are individually referred to herein as an “Event,”
and
(V) the
Filing Deadline Date, in the case of clause (i) above,
(W) the
Effectiveness Deadline Date, in the case of clause (ii) above,
(X) the
Additional Filing Deadline Date, the Amendment Effectiveness Deadline Date
or
the Subsequent Shelf Registration Statement Effectiveness Deadline Date, as
the
case may be, in the case of clause (iii) above,
(Y) the
first
date on which the duration of the ineffectiveness or unusability of the Shelf
Registration Statement exceeds the number of days permitted by clause (iv)
above, in the case of clause (iv) above, and
(Z) the
date
the applicable Registration Statement or amendment thereto shall become
effective under the Securities Act, or the date the applicable Prospectus is
filed with the SEC or, if later, the time the Registration Statement to which
such Prospectus relates becomes effective under the Securities Act, as the
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case
may be, in the case of clause (v) above,
are
each
herein referred to as an “Event
Date.”
Events
shall be deemed to continue until the following dates with respect to the
respective types of Events:
(A) the
date
the Initial Shelf Registration Statement is filed with the SEC, in the case
of
an Event of the type described in clause (i) above;
(B) the
date
the Initial Shelf Registration Statement becomes effective under the Securities
Act, in the case of an Event of the type described in clause (ii)
above;
(C) the
date
a supplement to a Prospectus, a post-effective amendment or a Subsequent Shelf
Registration Statement, whichever is required, is filed with the SEC (in the
case of a supplement) or becomes effective under the Securities Act (in the
case
of a post-effective amendment or a Subsequent Shelf Registration Statement),
in
the case of an Event of the type described in clause (iii) above;
(D) the
date
the Initial Shelf Registration Statement or the Subsequent Shelf Registration
Statement, as the case may be, becomes effective and usable under the Securities
Act again, or the date another Subsequent Shelf Registration Statement is filed
with the SEC pursuant to Section 2(b) and becomes effective, in the case of
an
Event of the type described in clause (iv) above; or
(E) the
date
a supplement to the Prospectus is filed with the SEC, or the date a
post-effective amendment to the Registration Statement becomes effective under
the Securities Act, or the date a Subsequent Shelf Registration Statement
becomes effective under the Securities Act, which supplement, post-effective
amendment or Subsequent Shelf Registration Statement, as the case may be, names
as selling securityholders, in such a manner as to permit them to deliver the
related Prospectus to purchasers of Registrable Securities in the manner
contemplated by, and in accordance with, the Securities Act, all Notice Holders
required, as herein provided, to be so named, in the case of an Event of the
type described in clause (v) above.
Notwithstanding
anything herein to the contrary, Events described in clauses (ii), (iii) and
(v)
above will be deemed to be suspended during any Suspension Period unless the
duration of such Suspension Period exceeds forty five (45) days in the aggregate
in any three (3) month period or ninety (90) days in the aggregate in any twelve
(12) month period.
Accordingly,
commencing on (and including) any Event Date and ending on (but excluding)
the
next date on which there are no Events that have occurred and are continuing
(an
“Additional
Interest Accrual Period”),
the
Issuers agree, jointly and severally, to pay, as additional interest
(“additional
interest”)
and
not as a penalty, an amount (the “Additional
Interest Amount”)
at the
rate described below, payable semi-
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annually
on each Additional Interest Payment Date to Record Holders, to the extent of,
for each such Additional Interest Payment Date, the unpaid Additional Interest
Amount that has accrued to (but excluding) such Additional Interest Payment
Date (or, if the Additional Interest Accrual Period shall have ended prior
to
such Additional Interest Payment Date, to, but excluding, the day immediately
after the last day of such Additional Interest Accrual Period); provided,
however,
that
any unpaid Additional Interest Amount that has accrued with respect to any
Note,
or portion thereof, called for Redemption on a Redemption Date, or purchased
by
the Company pursuant to a Purchase at Holder’s Option or Repurchase Upon
Fundamental Change on an Option Purchase Date or Fundamental Change Repurchase
Date, as the case may be, that is after the close of business on the Record
Date
relating to such Additional Interest Payment Date and before such Additional
Interest Payment Date, shall, in each case, be instead paid, on such Redemption
Date, Option Purchase Date or Fundamental Change Repurchase Date, as the case
may be, to the Holder who submitted such Note or portion thereof for Redemption,
Purchase at Holder’s Option or Repurchase Upon Fundamental Change, as the case
may be. In no event shall any additional interest accrue on any shares of
Underlying Common Stock.
The
Additional Interest Amount shall accrue at a rate per annum equal to one quarter
of one percent (0.25%) for the ninety (90) day period beginning on, and
including, the Event Date and thereafter at a rate per annum equal to one half
of one percent (0.50%) of the aggregate principal amount of the Notes of which
such Record Holders were holders of record at the close of business on the
applicable Record Date; provided,
however,
that:
(I) unless
there shall be a default in the payment of any Additional Interest Amount,
no
Additional Interest Amounts shall accrue as to any Note from and after the
earlier of (x) the date such Note is no longer a Registrable Security, (y)
the
date, and to the extent, such Note is converted into shares of Common Stock
in
accordance with the Indenture and (z) the expiration of the Effectiveness
Period;
(II) only
those Holders (or their subsequent transferees) failing to be named as selling
securityholders in the manner prescribed in Section 2(e)(v) above shall be
entitled to receive any Additional Interest Amounts that have accrued solely
with respect to an Event of the type described in Section 2(e)(v) above (it
being understood that this clause (II) shall not impair any right of any Holder
to receive Additional Interest Amounts that have accrued with respect to an
Event other than an Event of the type described in Section 2(e)(v)
above);
(III) only
those Holders (or their subsequent transferees) whose delivery of a Notice
and
Questionnaire gave rise to the obligation of the Issuers, pursuant to Section
2(d)(i), to file and, if applicable, make effective under the Securities Act
the
supplement, post-effective amendment or Subsequent Shelf Registration Statement
referred to in Section 2(e)(iii) above shall be entitled to receive any
Additional Interest Amounts that have accrued solely with respect to an Event
of
the type described in Section 2(e)(iii) above (it being understood that this
clause
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(III)
shall not impair any right of any Holder to receive Additional Interest Amounts
that have accrued with respect to an Event other than an Event of the type
described in Section 2(e)(iii) above); and
(IV) if
a Note
ceases to be outstanding during an Additional Interest Accrual Period for which
an Additional Interest Amount would be payable with respect to such Note, then
the Additional Interest Amount payable hereunder with respect to such Note
shall
be prorated on the basis of the number of full days such Note is outstanding
during such Additional Interest Accrual Period.
In
addition, no additional interest amounts shall be payable in respect of any
common shares that the Company issues as payment of any portion of a make-whole
payment.
Except
as
provided in the final paragraph of this Section 2(e), (i) the rate of accrual
of
the Additional Interest Amount with respect to any period shall not exceed
the
rate provided for in this Section 2(e) notwithstanding the occurrence of
multiple concurrent Events and (ii) following the cure of all Events requiring
the payment by the Issuers of Additional Interest Amounts to the Holders
pursuant to this Section, the accrual of Additional Interest Amounts shall
cease
(without in any way limiting the effect of any subsequent Event requiring the
payment of Additional Interest Amounts by the Issuers). All installments of
additional interest shall be paid as follows: (i) in the case of a Note that
is
in global form, by wire transfer of immediately available funds to the account
designated by the Depository Trust Company or its nominee; (ii) in the case
of a
Note that is held, other than in global form, by a Holder of more than five
million dollars ($5,000,000) in aggregate principal amount of the Notes, by
wire
transfer of immediately available funds to the account specified by such Holder
or, if such Holder does not specify an account, by mailing a check to the
address of such Holder set forth in the register of the registrar for the Notes
and (iii) in the case of a Note that is held, other than in global form, by
a
Holder of five million dollars ($5,000,000) or less in aggregate principal
amount of the Notes, by mailing a check to the address of such Holder set forth
in the register of the registrar for the Notes.
All
of
the Issuers’ obligations set forth in this Section 2(e) that are outstanding
with respect to any Registrable Security at the time such Registrable Security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section
10(n)).
The
parties hereto agree that the additional interest provided for in this Section
2(e) constitutes a reasonable estimate of the damages in respect of the Notes
that may be incurred by Holders by reason of an Event, including, without
limitation, the failure of a Shelf Registration Statement to be filed, become
effective under the Securities Act, amended or replaced to include the names
of
all Notice Holders or available for effecting resales of Registrable Securities
in accordance with the provisions hereof.
If
any
Additional Interest Amounts are not paid when due, then, to the extent permitted
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by
law,
such overdue Additional Interest Amounts, if any, shall bear interest,
compounded semi-annually, until paid at the rate of interest payable with
respect to overdue amounts on the Notes pursuant to Section 2.12 of the
Indenture.
(f) The
Trustee shall be entitled, on behalf of Holders, to seek any available remedy
for the enforcement of this Agreement, including for the payment of any
Additional Interest Amount.
3. Registration
Procedures.
In
connection with the registration obligations of the Issuers under Section 2
hereof, the Issuers shall:
(a) Prepare
and file with the SEC a Shelf Registration Statement or Shelf Registration
Statements in the manner provided in this Agreement and use their reasonable
best efforts to cause each such Shelf Registration Statement to become effective
under the Securities Act and remain effective under the Securities Act as
provided herein; provided,
that,
before filing any Shelf Registration Statement or Prospectus or any amendments
or supplements thereto with the SEC, the Issuers shall furnish to the Initial
Purchasers and counsel for the Holders and for the Initial Purchasers (or,
if
applicable, separate counsel for the Holders) copies of all such documents
proposed to be filed and reflect in each such document when so filed with the
SEC such comments as the Initial Purchasers or such counsel reasonably shall
propose within three (3) Business Days of the delivery of such copies to the
Initial Purchasers and such counsel. Each Registration Statement that is or
is
required by this Agreement to be filed with the SEC shall be filed on Form
S-3
if the Company is then eligible to use Form S-3 for the purposes contemplated
by
this Agreement, or, if the Company is not then so eligible to use Form S-3,
shall be on Form S-1 or another appropriate form that is then available to
the
Company for the purposes contemplated by this Agreement. Each such Registration
Statement that is filed on Form S-3 shall constitute an Automatic Shelf
Registration Statement if the Company is then eligible to file an Automatic
Shelf Registration Statement on Form S-3 for the purposes contemplated by this
Agreement. If, at the time any Registration Statement is filed with the SEC,
the
Company is eligible, pursuant to Rule 430B(b), to omit, from the prospectus
that
is filed as part of such Registration Statement, the identities of selling
securityholders and amounts of securities to be registered on their behalf,
then
the Issuers may prepare and file such Registration Statement in a manner as
to
permit such omission and to allow for the subsequent filing of such information
in a prospectus pursuant to Rule 424(b) in the manner contemplated by Rule
430B(d).
(b) Prepare
and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement as may be necessary to keep such Shelf Registration
Statement or Subsequent Shelf Registration Statement continuously effective
until the expiration of the Effectiveness Period; cause the related Prospectus
to be supplemented by any required Prospectus supplement and, as so
supplemented, to be filed with the SEC pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by each Shelf Registration
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Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
(c) If
the
third anniversary of the initial effective date of any Registration Statement
(within the meaning of Rule 415(a)(5) under the Act) shall occur at any time
during the Effectiveness Period, to the extent required pursuant to Rule
415(a)(5) under the Act in order to permit the Registrable Securities to
continue to be offered, to file with the SEC, prior to such third anniversary,
a
new Registration Statement covering the Registrable Securities, in the manner
contemplated by, and in compliance with, Rule 415(a)(6), and use its best
efforts to cause such new Registration Statement to become effective under
the
Act as soon as practicable, but in any event within 180 days after such third
anniversary. Each such new Registration Statement, if any, shall be deemed,
for
purposes of this Agreement, to be a Subsequent Shelf Registration
Statement.
(d) If,
at
any time during the Effectiveness Period, any Registration Statement shall
cease
to comply with the requirements of the Securities Act with respect to
eligibility for the use of the form on which such Registration Statement was
filed with the SEC (or if such Registration Statement constituted an Automatic
Shelf Registration Statement at the time it was filed with the SEC and shall
thereafter cease to constitute an Automatic Shelf Registration Statement, or
if
the Company shall have received, from the SEC, a notice, pursuant to Rule
401(g)(2) under the Securities Act, of objection to the use of the form on
which
such Registration Statement was filed with the SEC), (i) promptly give notice
to
the Notice Holders and counsel for the Holders and for the Initial Purchasers
(or, if applicable, separate counsel for the Holders) and to the Initial
Purchasers and (ii) promptly file with the SEC a new Registration Statement
under the Securities Act, or a post-effective amendment to such Registration
Statement, to effect compliance with the Securities Act. The Issuers shall
use
their reasonable best efforts to cause such new Registration Statement or
post-effective amendment to become effective under the Securities Act as soon
as
practicable and shall promptly give notice of such effectiveness to the Notice
Holders and counsel for the Holders and for the Initial Purchasers (or, if
applicable, separate counsel for the Holders) and to the Initial Purchasers.
Each such new Registration Statement, if any, shall be deemed, for purposes
of
this Agreement, to be a Subsequent Shelf Registration Statement.
(e) During
the Effectiveness Period, as promptly as practicable, give notice to the Notice
Holders, the Initial Purchasers and counsel for the Holders and for the Initial
Purchasers (or, if applicable, a single separate counsel for the
Holders):
(i) when
any
Prospectus, Prospectus supplement, Shelf Registration Statement or
post-effective amendment to a Shelf Registration Statement has been filed with
the SEC and, with respect to a Shelf Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, it being understood that notice to the Trustee that a filing
or
effectiveness thereof has been posted on the SEC’s ▇▇▇▇▇ website shall
constitute notice of the foregoing,
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(ii) of
any
request, following the effectiveness of a Shelf Registration Statement
under the Securities Act, by the SEC or any other governmental authority for
amendments or supplements to such Shelf Registration Statement or the related
Prospectus or for additional information,
(iii) of
the
issuance by the SEC or any other governmental authority of any stop order
suspending the effectiveness of any Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(iv) of
the
receipt by any Issuer or its legal counsel of any notification with respect
to
the suspension of the qualification or exemption from qualification of any
of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose,
(v) after
the
effective date of any Shelf Registration Statement filed with the SEC pursuant
to this Agreement, of the occurrence of (but not the nature of or details
concerning) a Material Event, and
(vi) of
the
determination by the Issuers that a post-effective amendment to a Shelf
Registration Statement or a Subsequent Shelf Registration Statement will be
filed with the SEC, which notice may, at the discretion of the Issuers (or
as
required pursuant to Section 3(k)), state that it constitutes a Suspension
Notice, in which event the provisions of Section 3(k) shall apply.
(f) Use
their
reasonable best efforts to (i) prevent the issuance of, and, if issued, to
obtain the withdrawal of, any order suspending the effectiveness of a Shelf
Registration Statement and (ii) obtain the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for
sale, in either case at the earliest practicable time, and provide prompt notice
to each Notice Holder and the Initial Purchasers, and counsel for the Holders
and for the Initial Purchasers (or, if applicable, separate counsel for the
Holders), of the withdrawal or lifting of any such order or
suspension.
(g) If
requested in writing by the Initial Purchasers or any Notice Holder, as promptly
as practicable incorporate in a Prospectus supplement or a post-effective
amendment to a Shelf Registration Statement such information as such Initial
Purchaser, such Notice Holder or counsel for the Holders and for the Initial
Purchasers (or, if applicable, a single separate counsel for the Holders) shall
determine to be required to be included therein by applicable law and make
any
required filings of such Prospectus supplement or such post-effective amendment;
provided,
however,
that
the Issuers shall not be required to take any actions under this Section 3(g)
that, in the written opinion of counsel for the Issuers, are not required in
order to be in compliance with applicable law.
(h) As
promptly as practicable, upon request, furnish to each Notice Holder,
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counsel
for the Holders and for the Initial Purchasers (or, if applicable, a single
separate counsel for the Holders) and the Initial Purchasers, without charge,
at
least one (1) conformed copy of each Shelf Registration Statement and each
amendment thereto, including financial statements but excluding schedules,
all
documents incorporated or deemed to be incorporated therein by reference and
all
exhibits (unless requested in writing to the Company by such Notice Holder,
such
counsel or the Initial Purchasers).
(i) During
the Effectiveness Period, deliver to each Notice Holder, counsel for the Holders
and for the Initial Purchasers (or, if applicable, a single separate counsel
for
the Holders) and the Initial Purchasers, in connection with any sale of
Registrable Securities pursuant to a Shelf Registration Statement, without
charge, as many copies of the Prospectus or Prospectuses relating to such
Registrable Securities (including each preliminary prospectus) and any amendment
or supplement thereto as such Notice Holder or the Initial Purchasers may
reasonably request; and each Issuer hereby consents (except during such periods
that a Suspension Notice is outstanding and has not been revoked) to the use
of
such Prospectus and each amendment or supplement thereto by each Notice Holder,
in connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.
(j) Prior
to
any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use their reasonable best efforts to register or qualify
or cooperate with the Notice Holders in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky
laws
of such jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire); use its best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
in connection with such Notice Holder’s offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption therefrom) and
do
any and all other acts or things reasonably necessary or advisable to enable
the
disposition in such jurisdictions of such Registrable Securities in the manner
set forth in the relevant Shelf Registration Statement and the related
Prospectus; provided,
however,
that
the Issuers will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or take any action that would
subject it to general service of process in suits, other than those arising
out
of and limited solely to the offering or sale of Registrable Securities, in
any
jurisdiction where it is not now so subject.
(k) Upon:
(A) the
occurrence or existence of any pending corporate development (a “Material
Event”)
that,
in the reasonable discretion of the Issuers, makes it appropriate to suspend
the
availability of any Shelf Registration Statement and the related Prospectus;
(B)
the issuance by the SEC of a stop order suspending the effectiveness of any
Shelf Registration Statement or the initiation of proceedings with respect
to
any Shelf Registration Statement under Section 8(d) or 8(e) of the Securities
Act; or (C) the occurrence of any event or the existence of any fact as a result
of which any Shelf Registration Statement shall 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
-17-
statements
therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading,
(i) in
the
case of clause (A) or (C) above, subject to the next sentence, as promptly
as
practicable, prepare and file, if necessary pursuant to applicable law, a
post-effective amendment to such Shelf Registration Statement or a supplement
to
such Prospectus or any document incorporated therein by reference or file any
other required document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that such Shelf Registration Statement
does 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 so that such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, subject to the
next
sentence, use their reasonable best efforts to cause it to become effective
under the Securities Act as promptly as practicable, and
(ii) give
notice to the Notice Holders, the Initial Purchasers and counsel for the Holders
and for the Initial Purchasers (or, if applicable, separate counsel for the
Holders) and to the Initial Purchasers that the availability of the Shelf
Registration Statement is suspended (a “Suspension
Notice”)
(and,
upon receipt of any Suspension Notice, each Notice Holder agrees not to sell
any
Registrable Securities pursuant to such Shelf Registration Statement until
such
Notice Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above or until such Notice Holder is advised in
writing by the Company that the Prospectus may be used).
The
Issuers will use their best efforts to ensure that the use of the Prospectus
may
be resumed (x) in the case of clause (A) above, as soon as, in the reasonable
discretion of the Company, such suspension is no longer appropriate, (y) in
the
case of clause (B) above, as promptly as is practicable, and (z) in the case
of
clause (C) above, as soon as, in the reasonable judgment of the Company, the
Shelf Registration Statement does 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 the Prospectus
does
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading. The period during
which the availability of the Shelf Registration Statement and any Prospectus
may be suspended (the “Suspension
Period”)
without the Issuers incurring any obligation to pay additional interest pursuant
to Section 2(e) shall not exceed forty-five (45) days in the aggregate in any
three (3) month period or ninety (90) days in the aggregate in any twelve (12)
month period.
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(l) Make
available for inspection during normal business hours by representatives for
the
majority of Notice Holders and any underwriters (to the extent the Company
consents to an underwritten offering) participating in any disposition pursuant
to any Shelf Registration Statement and any broker-dealers, attorneys and
accountants retained by such Notice Holders or any such underwriters, all
relevant financial and other records and pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the appropriate
officers, directors and employees of the Company and its subsidiaries to make
available for inspection during normal business hours all relevant information
reasonably requested by such representatives for the majority of Notice Holders,
or any such underwriters, broker-dealers, attorneys or accountants in connection
with such disposition, in each case as is customary for similar “due diligence”
examinations; provided,
however,
that
such persons shall first agree in writing with the Company that such person
will
not engage in any transaction involving securities of the Company in violation
of applicable law (including, without limitation, federal securities laws
prohibiting trading on the basis of material non-public information) and that
any information that is reasonably and in good faith designated by the Company
in writing as confidential at the time of delivery of such information shall
be
kept confidential by such persons and shall be used solely for the purposes
of
exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of governmental or regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any Shelf
Registration Statement or the use of any Prospectus referred to in this
Agreement) or necessary to defend or prosecute a claim brought against or by
any
such persons (e.g.,
to
establish a “due diligence” defense), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available to
any
such person from a source other than the Company and such source is not bound
by
a confidentiality agreement or is not otherwise under a duty of trust to the
Company; provided further,
that
the foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by the counsel, referred to in Section 5, for the
Holders in connection with Shelf Registration Statements.
(m) Comply
with all applicable rules and regulations of the SEC in all material respects;
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act), which statements shall cover a period of twelve (12) months
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of each Shelf Registration Statement (within
the meaning of Rule 158(c) under the Securities Act), and which statements
shall
be so made generally available to the Company’s securityholders as follows: (i)
with respect to an earning statement which will be contained in one report
on
Form 10-K (or any other form as may then be available for such purpose), such
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earning
statement shall be made so generally available no later than the due date
(subject to applicable extensions under Rule 12b-25 under the Exchange Act)
by which the Company is required, pursuant to the Exchange Act, to file such
report with the SEC; and (ii) with respect to an earning statement which will
be
contained in any combination of reports on Form 10-K or Form 10-Q (or any other
form(s) as may then be available for such purpose), such earning statement
shall
be made so generally available no later than the due date (subject to applicable
extensions under Rule 12b-25 under the Exchange Act) by which the Company is
required, pursuant to the Exchange Act, to file the last of such reports which
together constitute such earning statement.
(n) Cooperate
with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold pursuant to a Shelf
Registration Statement, which certificates shall not bear any restrictive
legends, and cause such Registrable Securities to be in such denominations
as
are permitted by the Indenture and registered in such names as such Notice
Holder may request in writing at least three (3) Business Days prior to any
sale
of such Registrable Securities.
(o) Provide
a
CUSIP number for all Registrable Securities covered by a Shelf Registration
Statement not later than the effective date of the Initial Shelf Registration
Statement and provide the Trustee and the transfer agent for the Common Stock
with certificates for the Registrable Securities that are in a form eligible
for
deposit with The Depository Trust Company.
(p) Cooperate
and assist in any filings required to be made with the National Association
of
Securities Dealers, Inc.
(q) Upon
the
filing of the Initial Shelf Registration Statement, and upon the effectiveness
under the Securities Act of the Initial Shelf Registration Statement, announce
the same, in each case by release through a reputable national newswire service
or by notice to the Trustee after effectiveness of the filing has been posted
on
the SEC’s ▇▇▇▇▇ website.
(r) Cause
the
Indenture to be qualified under the TIA not later than the effective date of
the
Initial Shelf Registration Statement; and, in connection therewith, cooperate
with the Trustee to effect such changes to the Indenture as may be required
for
the Indenture to be so qualified in accordance with the terms of the TIA and
execute, and use its best efforts to cause the Trustee to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so qualified
in
a timely manner.
(s) Use
its
best efforts to cause the Underlying Common Stock to be listed on the American
Stock Exchange.
4. Holder’s
Obligations.
Each
Holder agrees, by acquisition of the Registrable Securities, that no Holder
of
Registrable Securities shall be entitled to sell any of such Registrable
Securities pursuant to a Shelf Registration Statement or to receive a
Prospectus
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relating
thereto, unless such Holder has furnished the Company with a Notice and
Questionnaire as required pursuant to Section 2(d) hereof (including the
information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. Each Notice Holder agrees promptly
to furnish to the Company all information required to be disclosed in order
to
make the information previously furnished to the Company by such Notice Holder
not misleading and any other information regarding such Notice Holder and the
distribution of such Registrable Securities as the Company may from time to
time
reasonably request. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the Holder
Information of such Holder furnished in writing by or on behalf of such Holder
to the Company does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements in such
Holder Information not misleading.
5. Registration
Expenses.
The
Issuers shall, jointly and severally, bear all fees and expenses incurred in
connection with the performance by the Issuers of their obligations under
Section 2 and Section 3 of this Agreement whether or not any of the Shelf
Registration Statements are filed or become effective under the Securities
Act.
Such fees and expenses (“Registration
Expenses”)
shall
include, without limitation, (i) all registration and filing fees and expenses
(including, without limitation, fees and expenses (x) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (y) of compliance with federal securities laws and state securities or
Blue
Sky laws (including, without limitation, reasonable fees and disbursements
of
counsel for the Holders in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to
a
Shelf Registration Statement may designate), (ii) all printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and printing Prospectuses), (iii) all duplication and mailing expenses
relating to copies of any Shelf Registration Statement or Prospectus delivered
to any Holders hereunder, (iv) all fees and disbursements of counsel for the
Issuers, (v) the fees and disbursements of one counsel for the Holders in
connection with the Shelf Registration Statement (provided,
however,
that in
no event shall the Company be obligated to pay under this subsection (v) any
such fees and disbursements to the extent they exceed fifteen thousand dollars
($15,000) in the aggregate), (vi) all fees and disbursements of the Trustee
and
its counsel and of the registrar and transfer agent for the Common Stock and
(vii) Securities Act liability insurance obtained by the Issuers in their sole
discretion. In addition, the Issuers shall pay the internal expenses of the
Issuers (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the fees and expenses incurred in connection with
the
listing by the Company of the Registrable Securities on any securities exchange
on which similar securities of the Company are then listed and the fees and
expenses of any person, including, without limitation, special experts, retained
by the Issuers.
If the
Issuers shall, pursuant to Rule 456(b), defer payment of any registration fees
due under the Securities Act with respect to any Registration Statement, the
Issuers agree that they shall pay the fees applicable to such Registration
Statement within the time required by Rule 456(b)(1)(i) (without reliance on
the
proviso to Rule 456(b)(1)(i)) and in compliance with Rule 456(b) and Rule
457(r).
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6. Indemnification,
Contribution.
(a) Each
Issuer, jointly and severally, agrees to indemnify, defend and hold harmless
each Initial Purchaser, each Holder, each person (a “Controlling
Person”),
if
any, who controls any Initial Purchaser or Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and the respective
officers, directors, partners, employees, representatives and agents of any
Initial Purchaser, the Holders or any Controlling Person (each, a “Holder
Indemnified Party”),
from
and against any loss, damage, expense, liability, claim or any actions in
respect thereof (including the reasonable cost of investigation) which such
Holder Indemnified Party may incur or become subject to under the Securities
Act, the Exchange Act or otherwise, insofar as such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in any Shelf
Registration Statement or Prospectus, including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated in any Shelf
Registration Statement or in any amendment or supplement thereto or necessary
to
make the statements therein not misleading, or arises out of or is based upon
any omission or alleged omission to state a material fact necessary in order
to
make the statements made in any Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, in the light of the circumstances
under which such statements were made, not misleading, and the Issuers shall
,jointly and severally, reimburse the Holder Indemnified Parties for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, damage, expense, liability, claim or action in
respect thereof; provided,
however,
that
the Issuers shall not be required to provide any indemnification pursuant to
this Section 6(a) in any such case insofar as any such loss, damage, expense,
liability, claim or action arises out of or is based upon any untrue statement
or omission or alleged untrue statement or omission of a material fact contained
in, or omitted from, and in conformity with information furnished in writing
by
or on behalf of an Initial Purchaser or a Holder to the Company expressly for
use in, any Shelf Registration Statement or any Prospectus; provided further,
however,
that
this indemnity agreement will be in addition to any liability which the Issuers
may otherwise have to such Holder Indemnified Party; provided further,
however,
that no
Holder Indemnified Party shall be entitled to this indemnity to the extent,
and
only to the extent, such loss, damage, expense, liability, claim or action
arises out of a disposition, pursuant to a Shelf Registration Statement, of
Registrable Securities by such Holder Indemnified Party during a Suspension
Period, provided such Holder Indemnified Party received, prior to such
disposition, a Suspension Notice with respect to such Suspension
Period.
(b) Each
Holder, severally and not jointly, agrees to indemnify, defend and hold harmless
each Issuer, its directors, officers, employees, representatives and agents
and
any person who controls any Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, an “Issuer
Indemnified Party”)
from
and against any loss, damage, expense, liability, claim or any actions in
respect thereof (including the reasonable cost of investigation) which such
Issuer Indemnified
-22-
Party
may
incur or become subject to under the Securities Act, the Exchange Act
or otherwise, insofar as such loss, damage, expense, liability, claim or
action arises out of or is based upon (A) any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
(the “Holder
Information”)
furnished in writing by or on behalf of such Holder to the Company expressly
for
use in, any Shelf Registration Statement or Prospectus, including any document
incorporated by reference therein, or in any amendment or supplement thereto
or
in any preliminary prospectus, or arises out of or is based upon any omission
or
alleged omission to state a material fact in connection with such Holder
Information, which material fact was not contained in such Holder Information,
and which material fact was either required to be stated in any Shelf
Registration Statement or Prospectus, including any document incorporated by
reference therein, or in any amendment or supplement thereto or in any
preliminary prospectus, or necessary to make such Holder Information not
misleading; (B) a sale, by such Holder, pursuant to a Shelf Registration
Statement, of Registrable Securities during a Suspension Period, provided that
the Company shall have theretofore provided such Holder with a Suspension Notice
with respect to such Suspension Period; or (C) a public sale of Registrable
Securities by such Holder without delivery, if required by the Securities Act,
of the most recent applicable Prospectus provided to such Holder by the Company
pursuant to Section 3(i) or Section 2(d)(i)(C); and, subject to the limitation
set forth in the immediately preceding clause, each Holder shall reimburse
any
Issuer Indemnified Party for any legal or other expenses reasonably incurred
by
such Issuer Indemnified Party in connection with investigating or defending
any
loss, damage, expense, liability, claim or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder
may
otherwise have to any Issuer Indemnified Party. In no event shall the liability
of any selling Holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale,
pursuant to the Shelf Registration Statement, of the Registrable Securities
giving rise to such indemnification obligation.
(c) If
any
action, suit or proceeding (each, a “Proceeding”)
is
brought against any person in respect of which indemnity may be sought pursuant
to either Section 6(a) or Section 6(b), such person (the “Indemnified
Party”)
shall
promptly notify the person against whom such indemnity may be sought (the
“Indemnifying
Party”)
in
writing of the institution of such Proceeding and the Indemnifying Party shall
assume the defense of such Proceeding; provided,
however,
that
the omission to so notify such Indemnifying Party shall not relieve such
Indemnifying Party from any liability which it may have to such Indemnified
Party or otherwise. Such Indemnified Party shall have the right to employ its
own counsel in any such case, but the fees and expenses of such counsel shall
be
at the expense of such Indemnified Party unless the employment of such counsel
shall have been authorized in writing by such Indemnifying Party in connection
with the defense of such Proceeding or such Indemnifying Party shall not have
employed counsel to have charge of the defense of such Proceeding within thirty
(30) days of the receipt of notice thereof or such Indemnified Party shall
have
reasonably concluded upon the written advice of counsel that there may be one
or
more defenses available to it that are different from, additional to or in
conflict with those available to such Indemnifying Party (in which case such
Indemnifying Party shall not have the right to direct that portion of
-23-
the
defense of such Proceeding on behalf of the Indemnified Party, but
such Indemnifying Party may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
such Indemnifying Party), in any of which events such reasonable fees and
expenses shall be borne by such Indemnifying Party and paid as incurred (it
being understood, however, that such Indemnifying Party shall not be liable
for
the expenses of more than one separate counsel in any one Proceeding or series
of related Proceedings together with reasonably necessary local counsel
representing the Indemnified Parties who are parties to such action). An
Indemnifying Party shall not be liable for any settlement of such Proceeding
effected without the written consent of such Indemnifying Party, but if settled
with the written consent of such Indemnifying Party, such Indemnifying Party
agrees to indemnify and hold harmless an Indemnified Party from and against
any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse such Indemnified Party for fees and expenses
of
counsel as contemplated by the second sentence of this paragraph, then such
Indemnifying Party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than sixty (60) Business Days after receipt by such
Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall
not have fully reimbursed such Indemnified Party in accordance with such request
prior to the date of such settlement and (iii) such Indemnified Party shall
have
given such Indemnifying Party at least thirty (30) days’ prior notice of its
intention to settle. No Indemnifying Party shall, without the prior written
consent of any Indemnified Party, effect any settlement of any pending or
threatened Proceeding in respect of which such 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 from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault or culpability
or
a failure to act by or on behalf of such Indemnified Party.
(d) If
the
indemnification provided for in this Section 6 is unavailable to an Indemnified
Party under Section 6(a) or Section 6(b), or insufficient to hold such
Indemnified Party harmless, in respect of any losses, damages, expenses,
liabilities, claims or actions referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, damages, expenses, liabilities, claims or actions (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers, on the one hand, and by the Holders or the Initial Purchasers, on
the
other hand, from the offering of the Registrable Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuers,
on
the one hand, and of the Holders or the Initial Purchasers, on the other hand,
in connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities, claims or actions, as well as any other relevant
equitable considerations. The relative fault of the Issuers, on the one hand,
and of the Holders or the Initial Purchasers, on the other hand, shall be
determined by reference to, among
-24-
other
things, whether the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission relates to information supplied by the
Issuers or by the Holders or the Initial Purchasers and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result
of
the losses, damages, expenses, liabilities, claims and actions referred to
above
shall be deemed to include any reasonable legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any Proceeding.
(e) The
Issuers, the Holders and the Initial Purchasers agree that it would not be
just
and equitable if contribution pursuant to this Section 6 were determined by
pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in Section 6(d) above.
Notwithstanding the provisions of this Section 6, no Holder shall be required
to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities giving rise to such contribution obligation and
sold
by such Holder were offered to the public exceeds the amount of any damages
which it has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders’ respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective amount
of
Registrable Securities they have sold pursuant to a Shelf Registration
Statement, and not joint. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of
this
Agreement, (ii) any investigation made by or on behalf of any Holder or Initial
Purchaser or any person controlling any Holder or Initial Purchaser, or any
Issuer, or officers or directors of any Issuer or any person controlling any
Issuer and (iii) the sale of any Registrable Security by any
Holder.
7. Information
Requirements.
(a) Each
Issuer covenants that, if at any time before the end of the Effectiveness Period
the Company is not subject to the reporting requirements of the Exchange Act,
it
will cooperate with any Holder of Registrable Securities and take such further
action as any Holder of Registrable Securities may reasonably request in writing
(including, without limitation, making such representations as any such Holder
may reasonably request), all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitations of the exemptions provided by Rule 144,
Rule 144A and Regulation S under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request
of
any Holder, the Company shall deliver to such
-25-
Holder
a
written statement as to whether the Company has complied with the
reporting requirements of the Exchange Act, unless such a statement has
been included in the Company’s most recent report filed with the SEC pursuant to
Section 13 or Section 15(d) of Exchange Act.
(b) The
Company shall file the reports required to be filed by it under the Exchange
Act
and shall comply with all other requirements set forth in the instructions
to
Form S-3 in order to allow the Company to be eligible to file registration
statements on Form S-3. The Company shall use its best efforts to remain
eligible (if eligible at the time of the filing of the Initial Registration
Statement), pursuant to Rule 430B(b), to omit, from the prospectus that is
filed
as part of a Registration Statement, the identities of selling securityholders
and amounts of securities to be registered on their behalf.
8. Underwritten
Registrations.
Notwithstanding anything herein to the contrary, in no event shall Registrable
Securities be offered and sold pursuant hereto through a Shelf Registration
Statement pursuant to an underwritten offering without the prior written
agreement of the Company. No person may participate in any underwritten
registration hereunder unless such person (i) agrees to sell such person’s
Registrable Securities on the basis reasonably provided in any underwriting
arrangements approved by the Company and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Additional
Guarantors.
In the
event that, pursuant to Section 11.04 of the Indenture, the Company shall have
created a replacement Guarantor after the time of execution of the Indenture,
such replacement Guarantor shall, within five (5) Business Days after the date
on which such replacement Guarantor was created, execute a counterpart to this
Agreement, and this Agreement shall apply to such replacement Guarantor with
the
same effect as if such replacement Guarantor had been originally named as a
Guarantor herein.
10. Miscellaneous.
(a) Remedies.
Each
Issuer acknowledges and agrees that any failure by any Issuer to comply with
its
obligations under this Agreement may result in material irreparable injury
to
the Initial Purchasers and the Holders for which there is no adequate remedy
at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, any Initial Purchaser or Holder
may
obtain such relief as may be required to specifically enforce each Issuer’s
obligations under this Agreement. Each Issuer further agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate. Notwithstanding the foregoing two sentences, this Section 10(a) shall
not apply to the subject matter referred to in and contemplated by Section
2(e).
(b) No
Conflicting Agreements.
No
Issuer is, as of the date hereof, a party to, nor shall it, on or after the
date
of this Agreement, enter into, any agreement with respect to such Issuer’s
securities that conflicts with the rights granted to the Holders in this
Agreement. Each Issuer represents and warrants that the rights granted to the
Holders
-26-
hereunder
do not in any way conflict with the rights granted to the holders of any
Issuer’s securities under any other agreements. No Issuer will take any
action with respect to the Registrable Securities which would adversely affect
the ability of any of the Holders to include such Registrable Securities in
a
registration undertaken pursuant to this Agreement. Each Issuer represents
and
covenants that it has not granted, and shall not grant, to any of its
securityholders (other than the Holders in such capacity) the right to include
any of the Company’s securities in any Shelf Registration Statement filed
pursuant to this Agreement.
(c) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, without the written consent of the
Issuers and the Holders of a majority of outstanding Registrable Securities;
provided,
however,
that,
no consent is necessary from any of the Holders in the event that this Agreement
is amended, modified or supplemented for the purpose of curing any ambiguity,
defect or inconsistency that does not adversely affect the rights of any
Holders. 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 Securities whose securities are being sold
pursuant to a Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Registrable Securities may
be
given by Holders of at least a majority of the Registrable Securities being
sold
by such Holders pursuant to such Shelf 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.
Each Holder of Registrable Securities outstanding at the time of any such
amendment, modification, supplement, waiver or consent or thereafter shall
be
bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 10(c), whether or not any notice, writing
or
marking indicating such amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered to such
Holder.
(d) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, by telecopier, by courier guaranteeing
overnight delivery or by first-class mail, return receipt requested, and shall
be deemed given (A) when made, if made by hand delivery, (B) upon confirmation,
if made by telecopier, (C) one (1) Business Day after being deposited with
such
courier, if made by overnight courier or (D) on the date indicated on the notice
of receipt, if made by first-class mail, to the parties as follows:
(i) if
to a
Holder, at the most current address given by such Holder to the Company in
a
Notice and Questionnaire or any amendment thereto;
(ii) if
to any
Issuer, to:
Five
Star
Quality Care, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
-▇▇-
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if
to the
Initial Purchasers, to:
c/o
UBS
Securities LLC
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Syndicate Department
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to (for informational purposes only):
UBS
Securities LLC
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Legal Department
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
UBS
Securities LLC
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Syndicate Department
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
or
to
such other address as such person may have furnished to the other persons
identified in this Section 10(d) in writing in accordance herewith.
(e) Majority
of Registrable Securities.
For
purposes of determining what constitutes holders of a majority of Registrable
Securities, as referred to in this Agreement, a majority shall constitute a
majority in aggregate principal amount of Registrable Securities, treating
each
relevant holder of shares of Underlying Common Stock as a holder of the
aggregate principal amount of Notes in respect of which such Underlying Common
Stock was issued.
(f)
Approval
of Holders.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
any
Issuer or its “affiliates” (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent Holders of
Registrable Securities, if the Initial Purchasers or such subsequent Holders
are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required
percentage.
-28-
(g) Third
Party Beneficiaries. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Issuers, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary
or
advisable to protect their rights or the rights of Holders hereunder. The
Trustee shall be entitled to the rights granted to it pursuant to this
Agreement.
(h) Successors
and Assigns.
Any
person who purchases any Covered Security from any Initial Purchaser or from
any
Holder shall be deemed, for purposes of this Agreement, to be an assignee of
such Initial Purchaser or such Holder, as the case may be. This Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of each of the parties hereto and shall inure to the benefit of and
be
binding upon each Holder of any Covered Security.
(i) 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 original and all of which taken together shall constitute one and the
same
agreement.
(j) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(k) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held 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 thereby, 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 being intended that all
of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(m) Entire
Agreement.
This
Agreement is intended by the parties hereto as a final expression of their
agreement and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Issuers
with
respect to the Registrable Securities. Except as provided in the Purchase
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Issuers with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties with respect to such registration rights. No party
-29-
hereto
shall have any rights, duties or obligations
other than those specifically set forth in this Agreement.
(n) Termination.
This
Agreement and the obligations of the parties hereunder shall terminate upon
the
end of the Effectiveness Period, except for any liabilities or obligations
under
Section 4, Section 5 or Section 6 hereof and the obligations to make payments
of
and provide for additional interest under Section 2(e) hereof to the extent
such
additional interest accrues prior to the end of the Effectiveness Period and
to
the extent any overdue additional interest accrues in accordance with the last
paragraph of such Section 2(e), each of which shall remain in effect in
accordance with its terms.
(o) Submission
to Jurisdiction.
Except
as set forth below, no claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement
(“Claim”)
may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and each Issuer hereby
consents to the jurisdiction of such courts and personal service with respect
thereto. Each Issuer hereby consents to personal jurisdiction, service and
venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against any Initial Purchaser. EACH
ISSUER HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING
TO
THIS AGREEMENT. Each Issuer agrees that a final judgment in any such Proceeding
brought in any such court shall be conclusive and binding upon such Issuer
and
may be enforced in any other courts in the jurisdiction of which such Issuer
is
or may be subject, by suit upon such judgment.
[The
Remainder of This Page Intentionally Left Blank; Signature Page
Follows]
-30-
In
Witness Whereof,
the
parties have executed this Agreement as of the date first written
above.
|
Very
truly yours,
|
||
|
FIVE
STAR QUALITY CARE, INC.
|
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|
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
|
||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
|
||
|
Title:
Treasurer, Chief Financial Officer and Assistant Secretary
|
||
|
FS
LAFAYETTE TENANT TRUST
|
||
|
FS
LEISURE PARK TENANT TRUST
|
||
|
FS
LEXINGTON TENANT TRUST
|
||
|
FS
TENANT POOL I TRUST
|
||
|
FS
TENANT POOL II TRUST
|
||
|
FS
TENANT POOL III TRUST
|
||
|
FS
TENANT POOL IV TRUST
|
||
|
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
|
||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
|
||
|
Title:
Treasurer, Chief Financial Officer and Assistant Secretary
|
Accepted
and agreed to as of the date first above written, on behalf of itself and the
Initial Purchasers:
UBS
Securities LLC
By:
/s/ ▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Managing Director
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Associate Director
SCHEDULE
A
GUARANTORS
FS
Lafayette Tenant Trust
FS
Leisure Park Tenant Trust
FS
Lexington Tenant Trust
FS
Tenant
Pool I Trust
FS
Tenant
Pool II Trust
FS
Tenant
Pool III Trust
FS
Tenant
Pool IV Trust