EXHIBIT 4.3
PHOENIX COLOR CORP.
$105,000,000
10 3/8% SENIOR SUBORDINATED NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
Charlotte, North Carolina
February 2, 1999
First Union Capital Markets Corp.,
as Initial Purchaser
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Ladies and Gentlemen:
This Registration Rights Agreement is dated as of February 2, 1999 (the
"Agreement") and is by and among Phoenix Color Corp., a Delaware corporation
(the "Issuer"), Phoenix (Md.) Realty, LLC, a Maryland limited liability company
("Phoenix Realty"), and PCC Express, Inc., a Delaware corporation (together with
Phoenix Realty, the "Guarantors") and First Union Capital Markets Corp.
(formerly known as First Union Capital Markets, a division of Wheat First
Securities, Inc.) (the "Initial Purchaser").
This Agreement is being entered into in connection with the issuance of
certain 10 3/8% Senior Subordinated Notes due 2009 (the "Initial Notes")
pursuant to a Note Purchase Agreement dated January 28, 1999 by and among the
Issuer, the Guarantors and the Initial Purchaser (the "Note Purchase
Agreement"). The Initial Notes are to be unconditionally guaranteed, on a senior
subordinated basis (the "Guarantees"), by the Guarantors. To induce the Initial
Purchaser to enter into the Note Purchase Agreement and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Issuer has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchaser and its direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchaser to purchase the Initial
Notes. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Note Purchase Agreement. As used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" means, with respect to any specified person, any other person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
"control" of a person means the power, directly or indirectly, to direct or
cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any other day
which is a legal holiday under the laws of New York, New York or is a day on
which banking institutions located therein are authorized or required by law or
other governmental action to close.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange Offer, the
occurrence of (a) the filing and effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Exchange Notes to be issued in the
Registered Exchange Offer, (b) the maintenance of such Registration Statement
continuously effective and the keeping of the Registered Exchange Offer open for
a period not less than the minimum period required pursuant to Section 2(c)(ii)
hereof, (c) the Issuer's acceptance for exchange of all Registrable Notes duly
tendered and not validly withdrawn pursuant to the Registered Exchange Offer and
(d) the delivery by the Issuer to the Registrar under the Indenture of Exchange
Notes in the same aggregate principal amount as the aggregate principal amount
of Registrable Notes tendered by Holders thereof pursuant to the Registered
Exchange Offer. The term "Consummation" or "Consummated" has a meaning
correlative to the foregoing.
"Damages Accrual Period" has the meaning assigned to it in Section 4
hereto.
"Damages Payment Date" has the meaning assigned to it in Section 4 hereto.
"DTC" has the meaning assigned to it in Section 5.
"Effectiveness Target Date" has the meaning assigned to it in Section 4
hereto.
"Event" has the meaning assigned to it in Section 4 hereto.
"Event Date" has the meaning assigned to it in Section 4 hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Issuer identical in all
material respects to the Initial Notes (except that the Liquidated Damages
provisions and the transfer restrictions pertaining to the Initial Notes will be
eliminated) to be issued under the Indenture.
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"Exchange Offer Registration Period" means the 12-month period following
the Consummation of the Registered Exchange Offer, exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Exchange Offer Registration Statement; provided, however, that in the event
that all resales of Exchange Notes (including, subject to the time periods set
forth herein, any resales by Exchanging Dealers) covered by such Exchange Offer
Registration Statement have been made, the Exchange Offer Registration Statement
need not thereafter remain continuously effective for such period.
"Exchange Offer Registration Statement" means a registration statement of
the Issuer on an appropriate form under the Act with respect to the Registered
Exchange Offer, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchanging Dealer" means any Holder (which may include the Initial
Purchaser) that is a broker-dealer, electing to exchange Initial Notes acquired
for its own account as a result of market-making activities or other trading
activities for Exchange Notes.
"Guarantees" has the meaning set forth in the preamble hereto.
"Guarantors" has the meaning set forth in the preamble hereto.
"Holder" means any holder from time to time of Registrable Notes
(including the Initial Purchaser).
"Indenture" means the Indenture dated the date hereof by and among the
Issuer, the Guarantors and Chase Manhattan Trust Company, National Association,
a national banking association, as trustee.
"Initial Notes" has the meaning set forth in the preamble hereto.
"Initial Purchaser" has the meaning set forth in the preamble hereto.
"Issuer" has the meaning set forth in the preamble hereto.
"Liquidated Damages" has the meaning set forth in Section 4(b) hereto.
"Losses" has the meaning set forth in Section 7(d) hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Registrable Notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering under a
Shelf Registration Statement.
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"Note Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and all
amendments and supplements to the Prospectus, including post-effective
amendments.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Initial Notes, a like
principal amount of Exchange Notes.
"Registrable Notes" means each Initial Note upon original issuance of the
Initial Notes and, at all times subsequent thereto, each Exchange Note as to
which clauses (iii), (iv) or (v) of the first paragraph of Section 3 hereof are
applicable upon original issuance and at all times subsequent thereto, until in
the case of any such Initial Note or Exchange Note, as the case may be, the
earliest to occur of (i) a Registration Statement (other than, with respect to
any Exchange Note as to which clauses (iii), (iv) or (v) of the first paragraph
of Section 3 hereof are applicable, the Exchange Registration Statement)
covering such Initial Note or Exchange Note, as the case may be, has been
declared effective by the Commission and such Initial Note (unless such Initial
Note was not tendered for exchange by the Holder thereof) or Exchange Note, as
the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Initial Note or Exchange Note, as the case may
be, is sold in compliance with Rule 144, or (iii) such Initial Note or Exchange
Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
"Registration Statement" means any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Registrable Notes
(including any Guarantees of each thereof) pursuant to the provisions of this
Agreement, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto, and all material incorporated by reference
therein.
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement of
the Issuer pursuant to the provisions of Section 3 hereof, which covers some or
all of the Registrable Notes, as applicable, on an appropriate form under Rule
415 under the Act, or any similar rule that may be adopted by the Commission,
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
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"Shelf Registration Trigger Date" means the date on which the filing of a
Shelf Registration is requested or required under Section 3 hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the trustee with respect to the Initial Notes or Exchange
Notes, as applicable, under the Indenture.
"Underwriter" means any underwriter of Registrable Notes in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Notes by Exchanging
Dealers; Private Exchange. (a) The Issuer and the Guarantors shall prepare and,
not later than 45 days from the date of original issuance of the Initial Notes
(or, if such 45th day is not a Business Day, by the first Business Day
thereafter), shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Issuer and the
Guarantors shall use their best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Act within 130 days
from the date of original issuance of the Initial Notes (or, if such 130th day
is not a Business Day, by the first Business Day thereafter), and (ii) to
Consummate the Registered Exchange Offer within 30 Business Days from the date
the Exchange Offer Registration Statement becomes effective (or, if such 30th
day is not a Business Day, by the first Business Day thereafter).
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuer and the Guarantors shall promptly commence and Consummate the
Registered Exchange Offer. The objective of such Registered Exchange Offer is to
enable each Holder electing to exchange Registrable Notes for Exchange Notes
(assuming that such Holder (x) is not an "affiliate" of the Issuer or the
Guarantors within the meaning of the Act, (y) is not a broker-dealer that
acquired the Registrable Notes in a transaction other than as a part of its
market-making or other trading activities and (z) if such Holder is not a
broker-dealer, acquires the Exchange Notes in the ordinary course of such
Holder's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or understandings with any person to participate
in the distribution of the Exchange Notes) to resell such Exchange Notes from
and after their receipt without any limitations or restrictions under the Act
and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Issuer and the
Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance for not
less than 20 Business Days after the date notice thereof is mailed to the
Holders;
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(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Issuer and the Guarantors may suspend the use of the Prospectus
for a period not to exceed 30 days in any three-month period or for three
periods not to exceed an aggregate of 90 days in any twelve-month period for
valid business reasons, to be determined by the Issuer and the Guarantors in
their reasonable judgment (not including avoidance of their obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided, that the Issuer and the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(e) As soon as practicable after the Consummation of the Registered
Exchange Offer, the Issuer and the Guarantors shall cause the Trustee promptly
to authenticate and deliver to each Holder Exchange Notes equal in principal
amount to the Registrable Notes of such Holder so accepted for exchange.
(f) The Initial Purchaser, the Issuer and the Guarantors acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Notes received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Registrable Notes acquired for its own account as
a result of market-making activities or other trading activities. Accordingly,
the Issuer and the Guarantors shall:
(i) include the information set forth in Annex A hereto on the cover
of the Prospectus forming a part of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Registered Exchange Offer, in Annex C hereto in the underwriting or plan
of distribution section of the Prospectus forming a part of the Exchange
Offer Registration Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act during the Exchange Offer
Registration Period for delivery of the prospectus included therein by
Exchanging Dealers in connection with sales of Exchange Notes received
pursuant to the Registered Exchange Offer, as contemplated by Section 5(h)
below.
(g) In the event that the Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Registrable Notes constituting any portion of an unsold allotment,
upon the effectiveness of the Shelf Registration Statement as contemplated by
Section 3 hereof and at the request of the Initial Purchaser, the
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Issuer and the Guarantors shall issue and deliver to the Initial Purchaser, or
to the party purchasing Registrable Notes registered under the Shelf
Registration Statement from the Initial Purchaser, in exchange for such
Registrable Notes, a like principal amount of Exchange Notes. The Issuer and the
Guarantors shall use their best efforts to cause the CUSIP Service Bureau to
issue the same CUSIP number for such Exchange Notes as for Exchange Notes issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, any of the Issuer or the
Guarantors determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof, or (ii) the Registered Exchange Offer is not Consummated within 30
Business Days from the date the Exchange Offer Registration Statement becomes
effective (or, if such 30th day is not a Business Day, by the first Business Day
thereafter), or (iii) the Initial Purchaser so requests with respect to
Registrable Notes held by it as a result of the purchase of such Registrable
Notes directly from the Issuer and the Guarantors following Consummation of the
Registered Exchange Offer and the Initial Purchaser is not eligible to receive
Exchange Notes pursuant to the Registered Exchange Offer in respect of such
Registrable Notes, or (iv) any Holder (other than the Initial Purchaser) is not
eligible to participate in the Registered Exchange Offer or the Exchange Notes
such Holder would receive in the Registered Exchange Offer could only be
reoffered and resold by such Holder upon compliance with the registration and
prospectus delivery requirements of the Act and the delivery of the Prospectus
contained in the Exchange Offer Registration Statement, as appropriately
amended, is not a legally available alternative, or (v) in the case where the
Initial Purchaser participates in the Registered Exchange Offer or acquires
Exchange Notes pursuant to Section 2(g) hereof, the Initial Purchaser does not
receive freely tradable Exchange Notes in exchange for Initial Notes
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that the Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Act in connection with sales of Exchange Notes
acquired in exchange for such Registrable Notes shall not result in such
Exchange Notes being not "freely tradable" and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Notes acquired in the Registered Exchange Offer in exchange for Registrable
Notes acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Notes being not "freely tradable"),
the following provisions shall apply:
(a) The Issuer and the Guarantors shall prepare, and not later than 45
days following the Shelf Registration Trigger Date (or, if such 45th day is not
a Business Day, by the first Business Day thereafter), shall file with the
Commission and thereafter, but not later than 130 days following the Shelf
Registration Trigger Date (or, if such 130th day is not a Business Day, by the
first Business Day thereafter), shall use their best efforts to cause to be
declared effective under the Act a Shelf Registration Statement relating to the
offer and sale of the Registrable Notes by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement, provided, that with respect to
Exchange Notes received by the Initial Purchaser in exchange for Notes
constituting any portion of an unsold allotment, the Issuer and the Guarantors
may, if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration
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Statement containing the information required by Regulation S-K, Items 507
and/or 508, as applicable, in satisfaction of their obligations under this
paragraph (a) with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(b) The Issuer and the Guarantors shall use their best efforts to keep
such Shelf Registration Statement continuously effective in order to permit the
Prospectus forming a part thereof to be usable by Holders until the earliest of
(i) the second anniversary of the date on which the filing of a Shelf
Registration Statement was required or requested pursuant to this Section 3,
(ii) the date on which the Registrable Notes may be sold pursuant to Rule 144(k)
(or any successor provision) promulgated by the Commission under the Act and
(iii) such date as of which all the Registrable Notes have been sold pursuant to
the Shelf Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Issuer and the Guarantors shall be deemed not
to have used their best efforts to keep the Shelf Registration Statement
effective during the requisite period if any of them voluntarily takes any
action that would result in Holders of Registrable Notes covered thereby not
being able to offer and sell such notes during that period, unless such action
is (x) required by applicable law or (y) pursuant to Section 3(c) hereof, and,
in either case, so long as the Issuer or the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(c) The Issuer and the Guarantors may suspend the use of the Prospectus
for a period not to exceed 30 days in any three-month period or for three
periods not to exceed an aggregate of 90 days in any twelve-month period for
valid business reasons, to be determined by the Issuer and the Guarantors in
their reasonable judgment (not including avoidance of their obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided, that the Issuer and the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(d) No Holder of Registrable Notes may include any of its Registrable
Notes in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Issuer in writing, within 20 Business Days
after receipt of a request therefor, such information as the Issuer may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. No Holder of
Registrable Notes shall be entitled to Liquidated Damages pursuant to Section 4
hereof unless and until such Holder shall have used its best efforts to provide
all such reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Issuer all information required to be disclosed in order to make the information
previously furnished to the Issuer by such Holder not misleading.
4. Liquidated Damages.
(a) The parties hereto agree that the Holders of the Exchange Notes or the
Registrable Notes, as the case may be, will suffer damages, and that it would
not be feasible to ascertain the extent of such damages with precision, if (i)
either the Exchange Offer Registration Statement or the Shelf Registration
Statement has not been filed on or prior to the date specified for such
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filing in this Agreement, (ii) the Exchange Offer Registration Statement or the
Shelf Registration Statement has not been declared effective under the Act on or
prior to the target date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) the Registered Exchange Offer has not been
Consummated within 30 Business Days after the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement, (iv) prior to the end of
the Exchange Offer Registration Period or the Shelf Registration Period, the
Commission shall have issued a stop order suspending the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, or proceedings have been initiated with respect to the
Registration Statement under Section 8(d) or 8(e) of the Act, (v) the aggregate
number of days in any one such suspension period exceeds the period permitted
pursuant to Section 2(d) or 3(c) hereof, as each may be applicable, or (vi) the
number of suspension periods exceeds the number permitted pursuant to Section
2(d) or 3(c) hereof, as each may be applicable (each of the events of a type
described in any of the foregoing clauses (i) through (vi) are individually
referred to herein as an "Event;" and the date specified for the filing of the
Registration Statement in the case of clause (i), the target date specified for
the declaration of the effectiveness of the Registration Statement in the case
of clause (ii), the date specified for the Consummation of the Registered
Exchange Offer in the case of clause (iii), the date on which the effectiveness
of a Registration Statement has been suspended or proceedings with respect to
the Registration Statement under Section 8(d) or 8(e) of the Act have been
commenced in the case of clause (iv), the date on which the duration of a
suspension period exceeds the periods permitted by Section 2(d) or 3(c) hereof,
as each may be applicable, in the case of clause (v), and the date of the
commencement of a suspension period that causes the limit on the number of
suspension periods under Section 2(d) or 3(c) hereof, as each may be applicable,
to be exceeded in the case of clause (vi), are referred to herein as an "Event
Date"). Events shall be deemed to continue until the date of the termination of
such Event, which shall be the following date with respect to the respective
types of Events: the date the Registration Statement is filed in the case of an
Event of the type described in clause (i), the date the Registration Statement
is declared effective under the Act in the case of an Event described in clause
(ii), the date a Registered Exchange Offer is Consummated in the case of an
Event described in clause (iii), the date that all stop orders suspending
effectiveness of the Registration Statement have been removed and the
proceedings initiated with respect to the Registration Statement under Section
8(d) or 8(e) of the Act have terminated, as the case may be, in the case of
Events of the types described in clause (iv), termination of the suspension
period which caused the aggregate number of days in any one suspension period to
exceed the number permitted by Section 2(d) or 3(c) to be exceeded in the case
of Events of the type described in clause (v), and termination of the suspension
period the commencement of which caused the number of suspension periods
permitted by Section 2(d) or 3(c) to be exceeded in the case of Events of the
type described in clause (vi).
(b) Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and have not terminated (a "Damages
Accrual Period"), commencing on the Event Date on which such Damages Accrual
Period began, the Borrower and the Guarantors jointly and severally agree to pay
to each Holder, as liquidated damages (the "Liquidated Damages"), and not as a
penalty, with respect to the first 60-day period immediately following the Event
Date, an additional amount equal to $0.05 per week per $1,000 of the principal
amount of Exchange Notes or Registrable Notes held by such Holder. The amount of
the liquidated damages shall increase by an additional $0.05 per week per $1,000
of such
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principal amount with respect to each subsequent 60-day period until such Event
have terminated, up to a maximum amount of liquidated damages of $0.30 per week
per $1,000 of the principal amount of the Exchange Notes or Registrable Notes
held. Notwithstanding the foregoing, no Liquidated Damages shall accrue after
the expiration of the Exchange Offer Registration Period or the Shelf
Registration Period, as applicable.
(c) Liquidated Damages due on any Exchange Note or Registrable Note, as
the case may be, shall be payable on each date falling during the Damage Accrual
Period on which interest is due on such notes, and on the date immediately
following (or which would have followed) the termination of such Period on which
interest is due on the notes (the "Damages Payment Dates"). The Issuer shall pay
the Liquidated Damages due on any Registrable Notes or Exchange Notes by
depositing with the Trustee under the appropriate Indenture, in trust, for the
benefit of the Holders of Exchange Notes or Registrable Notes, as the case may
be, entitled thereto, at least one Business Day prior to the applicable Damages
Payment Date, sums sufficient to pay the Liquidated Damages accrued or accruing
since the last preceding Damages Payment Date to such Damages Payment Date. The
Trustee shall be entitled, on behalf of the Holders of Exchange Notes or
Registrable Notes, as the case may be, to seek any available remedy for the
enforcement of this Agreement, including for the payment of such Liquidated
Damages. Notwithstanding the foregoing, the parties agree that the sole remedy
payable for a violation of the terms of this Agreement with respect to which
Liquidated Damages are expressly provided shall be such Liquidated Damages.
Nothing shall preclude a Holder of Exchange Notes or Registrable Notes from
pursuing or obtaining specific performance or other equitable relief with
respect to any violation of this Agreement for which liquidated damages are not
expressly provided by this Agreement.
(d) All of the Issuer's and Guarantors' obligations set forth in this
Section 4 which are outstanding with respect to any Exchange Note or Registrable
Note at the time such note ceases to be covered by an effective Registration
Statement shall survive until such time as all such obligations with respect to
such security have been satisfied in full (notwithstanding termination of the
Agreement).
5. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Issuer and the Guarantors shall furnish to the Initial Purchaser,
prior to the filing thereof with the Commission, a copy of any Registration
Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein and shall use their best efforts to reflect
in each such document, when so filed with the Commission, such comments as the
Initial Purchaser reasonably may propose.
(b) The Issuer and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto
complies in all material respects with the Act;
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(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, that no representation or agreement shall be required to be made
hereby with respect to information with respect to the Initial Purchaser, any
Underwriter or any Holder required to be included in any Registration Statement
or Prospectus pursuant to the Act or the rules and regulations thereunder or
provided in writing by the Initial Purchaser, any Holder or any Underwriter
specifically for inclusion in any Registration Statement or Prospectus.
(c) (1) The Issuer and the Guarantors shall advise the Initial Purchaser
and, in the case of a Shelf Registration Statement, the Holders of Registrable
Notes covered thereby, and, if requested by the Initial Purchaser or any such
Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information.
(2) The Issuer and the Guarantors shall advise the Initial Purchaser and,
in the case of a Shelf Registration Statement, the Holders of Registrable Notes
covered thereby, and, in the case of an Exchange Offer Registration Statement,
any Exchanging Dealer that has provided in writing to the Issuer a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchaser or any such Holder or Exchanging Dealer, confirm such advice in
writing:
(i) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Issuer or the Guarantors of any
notification with respect to the suspension of the qualification of the
Registrable Notes included in any Registration Statement for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(iii) of the suspension of the use of the Prospectus pursuant to
Section 5(c) hereof or of the happening of any event that requires the
making of any changes in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not misleading and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein
11
are not misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been
made).
(d) The Issuer and the Guarantors shall use their best efforts to obtain
the withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time and in any event shall within 30 days of
any such order (or, if such 30th day is not a Business Day, by the first
Business Day thereafter) amend the Registration Statement covering all of the
Registrable Notes (whereupon references herein to the Registration Statement
shall be deemed to include reference to such additional filing).
(e) The Issuer and the Guarantors shall furnish to each Holder of
Registrable Notes included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits thereto (including those incorporated by reference).
(f) The Issuer and the Guarantors shall, during the Shelf Registration
Period, deliver to each Holder of Registrable Notes included within the coverage
of any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Issuer and the Guarantors consent to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Notes in connection with the offering and sale of the
Registrable Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Issuer and the Guarantors shall furnish to each Exchanging Dealer
that so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein and, if the Exchanging Dealer so requests in writing, all exhibits
thereto (including those incorporated by reference).
(h) The Issuer and the Guarantors shall, during the Exchange Offer
Registration Period, deliver to each Exchanging Dealer, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in
such Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request; and the Issuer and the
Guarantors consent to the use of the Prospectus or any amendment or supplement
thereto by any such Exchanging Dealer in connection with the offering and sale
of the Exchange Notes, as provided in Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other offering of
Registrable Notes pursuant to any Registration Statement, the Issuer and the
Guarantors shall register, qualify or cooperate with the Holders of Registrable
Notes included therein and their respective counsel in connection with the
registration or qualification of such Registrable Notes for offer and sale
12
under the securities or blue sky laws of such states as any such Holders
reasonably request in writing and do any and all other acts or things reasonably
necessary or advisable to enable the offer and sale in such jurisdictions of the
Registrable Notes covered by such Registration Statement; provided, however,
that none of the Issuer or Guarantors will be required to qualify generally to
do business in any jurisdiction in which any of them is not then so qualified,
to file any general consent to service of process or to take any action which
would subject any of them to general service of process or to taxation in any
such jurisdiction where it is not then so subject.
(j) The Issuer and the Guarantors shall cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Notes to be sold pursuant to any Registration Statement free of any
restrictive legends and in denominations and registered in such names as Holders
may request prior to sales of Registrable Notes pursuant to such Registration
Statement.
(k) Upon the occurrence of any event contemplated by paragraph (c)(2)(iii)
of this Section 5, the Issuer and the Guarantors shall promptly prepare and file
a post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or any other required document so that, as
thereafter delivered to purchasers of the Registrable Notes included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(l) The Issuer and the Guarantors shall use their best efforts to cause
The Depository Trust Company ("DTC") on the first Business Day following the
effective date of any Registration Statement hereunder or as soon as possible
thereafter to remove (i) from any existing CUSIP number assigned to the
Registrable Notes or Exchange Notes, as the case may be, any designation
indicating that such notes are "restricted securities," which efforts shall
include delivery to DTC of a letter executed by the Issuer substantially in the
form of Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to the Registrable Notes or Exchange Notes, as the case may be. In
the event the Issuer and the Guarantors are unable to cause DTC to take actions
described in the immediately preceding sentence, the Issuer and the Guarantors
shall take such actions as the Initial Purchaser may reasonably request to
provide, as soon as practicable, a CUSIP number for the Registrable Notes or
Exchange Notes registered under such Registration Statement and to cause such
CUSIP number to be assigned to the Registrable Notes or Exchange Notes (or to
the maximum aggregate principal amount of the securities to which such number
may be assigned). Upon compliance with the foregoing requirements of this
Section 5(l), the Issuer shall provide the Trustee with global certificates for
such Registrable Notes or Exchange Notes, in a form eligible for deposit with
The Depository Trust Company.
(m) The Issuer and the Guarantors shall use their best efforts to comply
with all applicable rules and regulations of the Commission and shall make
generally available to their security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
13
(n) The Issuer and the Guarantors shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Issuer and the Guarantors may require each Holder of Registrable
Notes to be sold pursuant to any Shelf Registration Statement to furnish to the
Issuer such information regarding the Holder and the distribution of such
Registrable Notes as may, from time to time, be reasonably required by the Act
and the rules and regulations promulgated thereunder, and the obligations of the
Issuer and the Guarantors to any Holder hereunder shall be expressly conditioned
on the compliance of such Holder with such request.
(p) The Issuer and the Guarantors shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement (i) such information as the Majority Holders provide or,
if the Registrable Notes are being sold in an underwritten offering, as the
Managing Underwriters and the Majority Holders reasonably agree should be
included therein and provide to the Issuer or Guarantors in writing for
inclusion in the Shelf Registration Statement or Prospectus, and (ii) such
information as a Holder may provide from time to time to the Issuer or
Guarantors in writing for inclusion in a Prospectus or any Shelf Registration
Statement concerning such Holder and the distribution of such Holder's
Registrable Notes and, in either case, shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
being notified in writing of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Issuer and the
Guarantors shall enter into such agreements (including underwriting agreements)
and take all other customary and appropriate actions as may be reasonably
requested in order to expedite or facilitate the registration or the disposition
of any Registrable Notes, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 7 (or such
other provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 7 from Holders of Exchange Notes to the Issuer and the
Guarantors). In the event any Shelf Registration Statement is prepared and filed
in connection with an underwritten offering, the managing underwriters in
connection therewith shall be reasonably acceptable to the Issuer.
(r) In the case of any Shelf Registration Statement, the Issuer and the
Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Registrable Notes to be registered thereunder, any Underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such Underwriter, all relevant financial and other records,
pertinent corporate documents and properties of the Issuer, the Guarantors
and their subsidiaries;
(ii) cause the Issuer's and the Guarantors' officers, directors and
employees to supply all relevant information reasonably requested by the
Holders or any such
14
Underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated
in writing by the Issuer or the Guarantors, in their sole discretion, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such Underwriter, attorney, accountant
or agent (who shall execute a confidentiality agreement in a form
reasonably acceptable to the Issuer), unless disclosure thereof is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally through the Issuer or the
Guarantors or through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Holders of
Registrable Notes registered thereunder and the Underwriters, if any, in
form, substance and scope as are customarily made by issuers to
Underwriters and covering matters including, but not limited to, those set
forth in the Note Purchase Agreement;
(iv) use their best efforts to obtain opinions of counsel to the
Issuer and the Guarantors and updates thereof (which counsel and opinions,
in form, scope and substance, shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by such Holders and Underwriters;
(v) use their best efforts to obtain "cold comfort" letters and
updates thereof from the independent certified public accountants of the
Issuer and the Guarantors (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuer or the
Guarantors or of any business acquired by the Issuer and the Guarantors
for which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each selling
Holder of the Registrable Notes covered by such Shelf Registration
Statement (provided such Holder furnishes the accountants with such
representations as the accountants customarily require in similar
situations) and the Underwriters, if any, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 5(i) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Issuer and the Guarantors.
(vii) The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 5(r) shall be performed at (A) the effectiveness
of such Shelf Registration Statement and each post-effective amendment
thereto and (B) each closing under any underwriting or similar agreement
as and to the extent required thereunder.
15
(s) The Issuer shall, if and to the extent required under the Act and/or
the Trust Indenture Act and the rules and regulations thereunder in order to
register the Registrable Notes (including the Guarantees) under the Act and
qualify the Indenture under the Trust Indenture Act, cause each Guarantor to
sign any Registration Statement and take all other action necessary to register
the Guarantees under the applicable Registration Statement.
6. Registration Expenses. The Issuer and the Guarantors shall bear all
expenses incurred in connection with the performance of their obligations under
Sections 2, 3, 4 and 5 hereof (other than brokers', dealers' and underwriters'
discounts and commissions and brokers', dealers' and underwriters' counsel or
other expert fees) and shall reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith.
7. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the Issuer
and the Guarantors, jointly and severally, agree to indemnify and hold
harmless each Holder of Registrable Notes covered thereby, the directors,
officers, employees and agents of each such Holder and each person who
controls any such Holder within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, in any preliminary Prospectus or Prospectus or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuer and the Guarantors
will not be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Issuer or the Guarantors by or on behalf of any such
Holder specifically for inclusion therein, (B) use of a Registration
Statement or the related Prospectus during a period when a stop order has
been issued in respect of such Registration or any proceedings for that
purpose have been initiated or use of a Prospectus when use of such
Prospectus has been suspended pursuant to Section 5(c); provided, further,
in each case, that Holders received prior notice of such stop order,
initiation of proceedings or suspension, or (C) if the Holder fails to
deliver a Prospectus or the then current Prospectus. This indemnity
agreement will be in addition to any liability which the Issuer or the
Guarantors may otherwise have.
16
(ii) The Issuer and the Guarantors also agree to indemnify or
contribute to Losses, as provided in Section 7(d), of any Underwriters of
Registrable Notes registered under a Registration Statement, their
officers and directors and each person who controls such Underwriters on
substantially the same basis as that of the indemnification of the selling
Holders provided in this Section 7(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 5(q) hereof.
(b) Each Holder of Registrable Notes covered by a Registration Statement
severally agrees to indemnify and hold harmless (i) the Issuer, (ii) each
Guarantor, (iii) each of their respective directors, (iv) each of their
respective officers who signs such Registration Statement and (v) each person
who controls the Issuer or any Guarantor within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing indemnity from the Issuer
and the Guarantors to each such Holder, but only with reference to written
information relating to such Holder furnished to the Issuer and the Guarantors
by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof,
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall have authorized the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided, further, that the indemnifying
party shall not be responsible for the fees and expenses of more than one
separate counsel (together with appropriate local counsel)
17
representing all the indemnified parties under paragraph (a)(i), paragraph
(a)(ii) or paragraph (b) above. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses; provided, however, that in no case shall any
Underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Registrable Notes purchased by such Underwriter
under the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Issuer and the Guarantors shall be
deemed to be equal to the aggregate principal amount of the Initial Notes.
Benefits received by any Holder shall be deemed to be equal to the value of
receiving Registrable Notes registered under the Act. Benefits received by any
Underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Issuer or any Guarantor within the meaning of either the
Act or the Exchange Act, each officer of the Issuer or any Guarantor who shall
have signed the Registration Statement and each director of the Issuer or any
Guarantor shall have the same rights to contribution as the Issuer or such
Guarantor, subject in each case to the applicable terms and conditions of this
paragraph (d).
18
(e) The provisions of this Section 7 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder, the Issuer
or any Guarantor or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive the sale by a Holder of
Registrable Notes covered by a Registration Statement.
8. Rules 144 and 144A
The Issuer covenants that it will file the reports required to be filed by
it under the Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder in a timely manner in accordance with the requirements of the
Act and the Exchange Act and, if at any time the Issuer is not required to file
such reports, it will, upon the request of any Holder of Registrable Notes, make
publicly available annual reports and such information, documents and other
reports of the type specified in Sections 13 and 15(d) of the Exchange Act. The
Issuer further covenants, for so long as any Registrable Notes remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner the information required
by Rule 144A(d)(4) under the Act in order to permit resales of such Registrable
Notes pursuant to Rule 144A. The Issuer acknowledges that the foregoing is in
addition to its obligations under Section 4.07 of the Indenture.
9. Miscellaneous.
(a) No Inconsistent Agreements. None of the Issuer or the Guarantors has,
as of the date hereof, entered into nor shall any of them, on or after the date
hereof, enter into any agreement that is inconsistent with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuer and the Guarantors have obtained the written
consent of the Majority Holders. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Registrable Notes are being
sold pursuant to a Shelf Registration Statement or whose Initial Notes are being
exchanged pursuant to an Exchange Offer Registration Statement, as the case may
be, and which does not directly or indirectly affect the rights of other Holders
may be given by such Holders, determined on the basis of notes being sold rather
than registered; and, furthermore, the signatories hereto may make any amendment
that does not, in the good faith opinion of the board of directors of the Issuer
(as evidenced by a resolution of such board) materially affect any Holder.
Notwithstanding any of the foregoing, no amendment, modification, supplement,
waiver or consents to any departure from the provisions of Section 7 hereof
shall be effective as against any Holder of Registrable Notes unless consented
to in writing by such Holder.
19
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchaser, as follows:
First Union Capital Markets Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
(Phoenix Color Corp. 10 3/8% Senior Subordinated
Notes due 2009)
(ii) if to any other Holder, at the most current address given by such
Holder to the Issuer in accordance with the provisions of this Section
9(c), which address initially is, with respect to each Holder, the address
of such Holder maintained by the registrar under the Indenture, with a
copy in like manner to the Initial Purchaser; and
(iii) if to the Issuer, as follows:
Phoenix Color Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail, telex or telecopier.
The Issuer by notice to the others may designate additional or different
addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Issuer or any Guarantor thereto, subsequent Holders. The Issuer and the
Guarantors hereby agree to extend the benefits of this Agreement to any Holder
and any such Holder may specifically enforce, and shall be bound by, the
provisions of this Agreement as if an original party hereto.
20
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Heading. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said State, without regard to the conflicts of law rules
thereof
(h) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Issuer, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Registrable Notes or
Exchange Notes is required hereunder, Registrable Notes or Exchange Notes held
by the Issuer, the Guarantors or their Affiliates (other than subsequent Holders
of Registrable Notes or Exchange Notes if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such notes) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
* * *
21
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer, the Guarantors and the Initial Purchaser.
Very truly yours,
PHOENIX COLOR CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
PHOENIX (MD.) REALTY, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
PCC EXPRESS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
The foregoing Agreement is hereby
accepted as of the date first above written.
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Notes received in exchange for Notes where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the Expiration Date and
ending on the close of business one year after the Expiration Date, it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Initial Notes, where such Initial Notes were acquired by such broker-dealer
as a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Initial Notes where such Initial Notes were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until _____________,1999, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Registered Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Notes may
be deemed to be an "underwriter" within the meaning of the Act and any profit
from any such resale of Exchange Notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the Act. The Letter of Transmittal states that by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Act.
For a period of one year after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the holders of the Initial Notes) other than dealers' and brokers'
discounts, commissions and counsel fees and will indemnify the holders of the
Initial Notes (including any broker-dealers) against certain liabilities,
including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
(TM)
Name: ____________________________________________
Address: ____________________________________________
____________________________________________
The undersigned represents that it is not an affiliate of the Company,
that any Exchange Notes to be received by it will be acquired in the ordinary
course of business and that at the time of the commencement of the Registered
Exchange Offer it had no arrangement with any person to participate in a
distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-dealer that will
receive Exchange Notes for its own account in exchange for Initial Notes, it
represents that the Initial Notes to be exchanged for Exchange Notes were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Notes; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
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Re: 10 3/8% Senior Subordinated Notes Due 2009 (the "Initial
Notes") of Phoenix Color Corp.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has declared
effective a Registration Statement under the Securities Act of 1933, as amended,
with regard to all of the Initial Notes referenced above. Accordingly, there is
no longer any restriction as to whom such Initial Notes may be sold and any
restrictions on the CUSIP designation are no longer appropriate and may be
removed. I understand that upon receipt of this letter, DTC will remove any stop
or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
Very truly yours,
Authorized Officer