Exhibit 4.5
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REGISTRATION RIGHTS AGREEMENT
dated as of
July 22, 1998
among
RADIO UNICA CORP.
and
THE GUARANTORS PARTY HERETO
and
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
as Initial Purchasers
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TABLE OF CONTENTS
Page
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1. Definitions................................................................................1
2. Exchange Offer.............................................................................5
3. Shelf Registration.........................................................................9
4. Additional Interest.......................................................................10
5. Registration Procedures...................................................................13
6. Registration Expenses.....................................................................23
7. Indemnification...........................................................................25
8. Rules 144 and 144A........................................................................29
9. Underwritten Registrations................................................................29
10. Miscellaneous.............................................................................30
(a) Remedies.........................................................................30
(b) Enforcement......................................................................30
(c) No Inconsistent Agreements.......................................................30
(d) Adjustments Affecting Registrable Notes..........................................30
(e) Amendments and Waivers...........................................................30
(f) Notices..........................................................................31
(g) Successors and Assigns...........................................................31
(h) Counterparts.....................................................................32
(i) Headings.........................................................................32
(j) Governing Law....................................................................32
(k) Severability.....................................................................32
(l) Entire Agreement.................................................................32
(m) Joint and Several Obligations....................................................32
(n) Notes Held by the Obligors or Their Affiliates...................................32
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
July 22, 1998, by and among RADIO UNICA CORP., a Delaware corporation (the
"Company"), the guarantors party hereto (the "Guarantors," and together with the
Company, the "Obligors") and CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP. and BEAR, ▇▇▇▇▇▇▇ & CO.
INC., as initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 22, 1998, among the Obligors and the Initial
Purchasers (the "Purchase Agreement") relating to the issuance and sale by the
Company to the Initial Purchasers of up to $158,088,000 aggregate principal
amount at maturity of the Company's senior discount notes due 2006 (the
"Notes"), which are guaranteed on a senior unsecured basis, jointly and
severally, by the Guarantors. In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Obligors have agreed to provide the
registration rights set forth in this Agreement to the Initial Purchasers and
its direct and indirect transferees and assigns. The execution and delivery of
this Agreement is a condition to the Initial Purchasers' obligation to purchase
the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Accreted Value: As of any date prior to August 1, 2002, an
amount per $1,000 principal amount at maturity of Notes that is equal to the sum
of (a) the initial offering price of each Note and (b) the portion of the excess
of the principal amount at maturity of each Note over such initial offering
price which shall have been amortized on a daily basis and compounded
semiannually on each August 1 and February 1 at the rate of 11 3/4% per annum
from the Issue Date through the date of determination computed on the basis of a
360-day year of twelve 30-day months; and, as of any date on or after August 1,
2002, the Accreted Value of each Note shall mean the aggregate principal amount
at maturity of such Note.
Additional Interest: See Section 4(a).
Advice: See Section 5.
Applicable Period: See Section 2(b).
Assessed Damage Amount: See Section 4(a).
Closing: See the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Consummation Date: The 180th day after the Issue Date.
Effectiveness Date: The 150th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 60th day after the Issue Date.
Guarantors: See the introductory paragraph to this Agreement.
Holder: Any registered holder of a Registrable Note or
Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of ___, 1998, by and among
the Company, the Guarantors and Wilmington Trust Company, as trustee, pursuant
to
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which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The Closing Date (as defined in the Purchase
Agreement).
NASD: See Section 5(t).
Notes: See the introductory paragraph to this Agreement.
Obligors: See the introductory paragraph to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
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Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 5(o).
Registrable Notes: The Notes upon original issuance of the
Notes and at all times subsequent thereto and, if issued, the Private Exchange
Notes, until in the case of any such Notes or any such Private Exchange Notes,
as the case may be, (i) a Registration Statement covering such Notes or such
Private Exchange Notes has been declared effective by the SEC and such Notes or
such Private Exchange Notes, as the case may be, have been exchanged and/or
disposed of in accordance with such effective Registration Statement, (ii) such
Notes or such Private Exchange Notes, as the case may be, are eligible to be
sold in compliance with Rule 144, (iii) in the case of any Note, such Note has
been exchanged for an Exchange Note or Exchange Notes pursuant to an Exchange
Offer or (iv) such Notes or such Private Exchange Notes, as the case may be,
cease to be outstanding.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of the
Obligors, including, but not limited to, the Exchange Registration Statement,
which covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
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Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A
registration under the Securities Act in which securities of the Company are
sold to an under writer(s) for reoffering to the public.
2. Exchange Offer
(a) Unless such an offer is not permitted by applicable law or
SEC policy, each Obligor, jointly and severally, agrees to use its reasonable
best efforts to file with the SEC as soon as practicable after the Closing, but
in no event later than the Filing Date, a registration statement covering an
offer to exchange (the "Ex change Offer") any and all of the Registrable Notes
for a like aggregate principal amount at maturity of debt securities of the
Company, guaranteed by the Guarantors, which are identical in all material
respects to the Notes (the "Exchange Notes"), guaranteed by the Guarantors (and
which are entitled to the benefits of the Indenture or a trust indenture which
is identical in all material respects to the Indenture (other than such changes
to the Indenture or any such identical trust indenture as are necessary to
comply with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA), except that the Exchange Notes shall have been registered pursuant to an
effective registration statement under the Securities Act and will not contain
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terms with respect to transfer restrictions. The Exchange Offer will be
registered under the Securities Act on the appropriate form (the "Exchange
Registration Statement"), and the Exchange Offer will comply with all applicable
tender offer rules and regulations under the Exchange Act. Each Obligor jointly
and severally agrees to use its reasonable best efforts to (x) cause the
Exchange Registration Statement to become effective under the Securities Act on
or before the Effectiveness Date; (y) keep the Exchange Offer open for at least
30 days (or longer if required by applicable law) after the date that notice of
the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer
with respect to all Notes validly tendered on or prior to the 60th day following
the date the Exchange Registration Statement is declared effective (in any event
on or prior to the Consummation Date) (or, in the event of any extension of the
Exchange Offer required by applicable law, the earliest day following any such
extension). Each Holder who participates in the Exchange Offer will be required
to represent that any Exchange Notes received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange Notes in violation of
the provisions of the Securities Act, that such Holder is not an affiliate of
any Obligor within the meaning of Rule 405 promulgated under the Securities Act
or if it is such an affiliate, that it will comply with the registration and
prospectus delivery requirements of the Securities Act, to the extent
applicable, and that is not acting on behalf of any Person who could not
truthfully make the foregoing representations. Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to Registrable Notes
that are Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Obligors shall have no further obligation to register
Registrable Notes (other than Private Exchange Notes and Exchange Notes held by
Participating Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Obligors shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 promulgated
under the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial Purchasers,
represent the prevailing views of the staff of the SEC. Such "Plan
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of Distribution" section shall also allow the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, and include a statement describing
the means by which Participating Broker-Dealers may resell the Exchange Notes.
Each Obligor shall use its reasonable best efforts to keep the
Ex change Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Notes, provided that such period
shall not exceed 180 days (or such longer period if extended pursuant to the
last paragraph of Section 5) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, either of the
Initial Purchasers holds any Notes acquired by it and having, or which are
reasonably likely to be determined to have, the status as an unsold allotment in
the initial distribution, the Obligors upon the request of such Initial
Purchaser shall, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Initial Purchaser, a like
principal amount at maturity of debt securities of the Obligors that are
identical in all material respects to the Exchange Notes (the "Private
Exchange"), guaranteed by the Guarantors (and which are entitled to the benefits
of the Indenture) except for the placement of a restrictive legend on the
Private Ex change Notes. If possible, the Private Exchange Notes shall bear the
same CUSIP number as the Exchange Notes. The Accreted Value will accrete as set
forth in the Indenture and interest on the Exchange Notes and Private Exchange
Notes will accrue from the last interest payment date on which interest was paid
on the Notes surrendered in exchange therefor or, if no interest has been paid
on the Notes, from the Issue Date. Holders of Exchange Notes and Private
Exchange Notes shall vote together as a class on all matters under the
Indenture.
In connection with the Exchange Offer, the Obligors shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
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(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and
(iii) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Obligors shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange; and
(ii) deliver, or cause to be delivered, promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount at maturity to the Notes of such
Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer,
the Obligors or Holders of at least a majority in aggregate principal amount at
maturity of the Registrable Notes reasonably determine in good faith that (i)
the Exchange Notes would not, upon receipt, be freely transferable by such
Holders which are not affiliates (within the meaning of the Securities Act) of
the Obligors without restriction under the Securities Act and without
restrictions under applicable state securities laws or (ii) after conferring
with counsel, the SEC is unlikely to permit the commencement of the Exchange
Offer prior to the Effectiveness Date, (2) subsequent to the consummation of the
Private Exchange, any holder of the Private Exchange Notes so requests but in no
event subsequent to 290 days following the consummation of the Exchange Offer
or (3) the Exchange Offer is commenced and not consummated prior to the
Consummation Date, then the Obligors shall promptly deliver to the Holders
written notice thereof (the "Shelf Notice") and shall file an Initial Shelf
Registration pursuant to Section 3. The parties hereto agree that following the
delivery of a Shelf Notice to the Holders of Registrable Notes (in the
circumstances contemplated by clauses (1) and (3) of the preceding sentence),
the Obligors shall not have any further obligation to conduct the Exchange Offer
or the Private Exchange under this Section 2.
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3. Shelf Registration
If a Shelf Notice is required to be delivered as contemplated
by Section 2(c) then:
(a) Initial Shelf Registration. The Obligors shall prepare and
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the then existing
Registrable Notes (the "Initial Shelf Registration"). If the Obligors shall have
not yet filed an Exchange Registration Statement, each Obligor shall use its
reasonable best efforts to file with the SEC the Initial Shelf Registration on
or prior to the Filing Date. In any other instance, each Obligor shall use its
reasonable best efforts to file with the SEC the Initial Shelf Registration as
promptly as practicable but, in any event, within 45 days following delivery of
the Shelf Notice. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale by
such Holders in the manner or manners reasonably designated by them (including,
without limitation, one or more underwritten offerings). The Obligors shall not
permit any securities other than the Registrable Notes to be included in the
Initial Shelf Registration or any Subsequent Shelf Registration. Each Obligor
shall use its reasonable best efforts to cause the Initial Shelf Registration to
be declared effective under the Securities Act, if an Exchange Registration
Statement has not yet been declared effective, on or prior to the Effectiveness
Date, or, in any other instance, as soon as practicable after the filing thereof
and in no event later than 90 days after filing of the Initial Shelf
Registration, and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the date which is 24 months from the date on
which such Initial Shelf Registration is declared effective (subject to
extension pursuant to the last paragraph of Section 5 hereof), or such shorter
period ending when (i) all Registrable Notes covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) a Subsequent Shelf Registration covering all of
the Registrable Notes has been declared effective under the Securities Act or
(iii) such Registrable Notes are eligible for resale pursuant to Rule 144(k)
under the Securities Act (the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time prior to the termination of the Effectiveness Period,
each Obligor shall use its reasonable best efforts to promptly restore the
effectiveness thereof, and in any event shall, within 45 days of such cessation
of effectiveness, amend the Shelf Registration
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in a manner reasonably expected to restore the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the then existing Registrable Notes (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, each Obligor shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
as soon as practicable after such filing and to keep such Registration Statement
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Obligors shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration or if required by the Securities Act. The Obligors shall
promptly supplement and amend the Shelf Registration if any such supplement or
amendment is reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration Statement
or by any underwriter(s) of such Registrable Notes.
4. Additional Interest
(a) The Obligors and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Obligors fail to fulfill
their obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay additional interest on the Notes ("Additional
Interest") ( or "Assessed Damage Amounts" to the extent the Company elects to
make payments under section 4(c) herein) under the circumstances and to the
extent set forth below:
(i) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been declared effective on or prior to
the Effectiveness Date;
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(iii) if an Initial Shelf Registration required by Section
2(c) (2) has not been filed on or prior to the date 45 days after
delivery of the Shelf Notice;
(iv) if an Initial Shelf Registration required by Section 2(c)
(2) has not been declared effective on or prior to the date 125 days
after the delivery of the Shelf Notice; and/or
(v) if (A) the Company has not exchanged the Exchange Notes
for all Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to 180 days after the Issue Date or (B) the
Exchange Registration Statement ceases to be effective at any time
prior to the time that the Ex change Offer is consummated as to all
Notes validly tendered or (C) if applicable, the Shelf Registration has
been declared effective and such Shelf Registration ceases to be
effective at any time prior to the termination of the Effectiveness
Period.
(each such event referred to in clauses (i) through (v) above is a "Registration
Default"). The sole remedy available to Holders of the Notes for a Registration
Default will be the accrual of Additional Interest as follows: the per annum
interest rate on the Notes will increase by 50 basis points during the first
90-day period following the occurrence of a Registration Default and until it is
waived or cured; and the per annum interest rate will increase by an additional
25 basis points for each subsequent 90-day period during which the Registration
Default remains uncured, up to a maximum additional interest rate of 200 basis
points per annum, provided, however, that (x) only Holders of Private Exchange
Notes shall be entitled to receive Additional Interest as a result of a
Registration Default pursuant to clause (iii) or (iv); (y) the Obligors shall in
no event be required to pay Additional Interest for more than one Registration
Default at any given time and (z) (1) upon the filing of the Ex change
Registration Statement or the Initial Shelf Registration (in the case of (i)
above), (2) upon the effectiveness of the Exchange Registration Statement or a
Shelf Registration (in the case of (ii) above), (3) upon the filing of the Shelf
Registration (in the case of (iii) above), (4) upon the effectiveness of the
Shelf Registration (in the case of (iv) above), or (5) upon the exchange of
Exchange Notes for all Notes tendered or the effectiveness of a Shelf
Registration (in the case of (v) (A) above), or upon the subsequent
effectiveness of the Exchange Registration Statement which had ceased to remain
effective or the effectiveness of a Shelf Registration (in the case of (v) (B)
above), or upon the subsequent effectiveness of the Shelf Registration which had
ceased to remain effective (in the case of (v) (C) above), Additional Interest
on
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the Notes as a result of such clause (i), (ii), (iii), (iv) or (v) (or the
relevant subclause thereof), as the case may be, shall cease to accrue and the
interest rate on the Notes will revert to the interest rate originally borne by
the Notes.
(b) The Obligors shall notify the Holders within one business
day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a) (i) , (a) (ii) , (a) (iii) , (a) (iv) or
(a) (v) of this Section 4 will be payable in cash semi-annually on each regular
interest payment date specified in the Indenture (to the Holders of record on
the regular record date therefor (specified in the Indenture) immediately
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue and until such Registration Default
is cured, immediately available funds in sums sufficient to pay such Additional
Interest. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the Accreted Value (in the case of
any such determination on or prior to August 1, 2002) or the principal amount at
maturity (in the case of any such determination after August 1, 2002) of the
Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
(c) Notwithstanding paragraph (b) above, the Obligors are not
required to pay Additional Interest prior to the time cash interest is payable
on the Notes; provided, however, that should the Obligors elect to defer payment
of the Additional Interest (such amount, and any interest payable with respect
thereto, the "Assessed Damage Amount") subsequent to the time such Additional
Interest would otherwise be payable under paragraph (b) above, the Assessed
Damage Amount will bear interest at the same rate as the Notes until such time
of payment.
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5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Obligors shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Obligors shall:
(a) Prepare and file with the SEC, as provided herein, a
Registration Statement or Registration Statements as prescribed by Section 2 or
3, and use their respective reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein, provided that, if (1) such filing is pursuant to Section 3, or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Obligors shall, upon written request,
furnish to and afford the Holders of the Registrable Notes covered by such
Registration Statement and each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriter(s), if any, a reasonable
opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (to the extent practicable, at least 5 business days prior
to such filing). The Obligors shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement, or such Participating
Broker-Dealer, as the case may be, their counsel, or the managing
underwriter(s), if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented by
any prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and
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comply with the provisions of the Securities Act and the Exchange Act applicable
to them with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Obligors shall
be deemed not to have used their reasonable best efforts to keep a Registration
Statement effective during the Applicable Period if any of them voluntarily
takes any action that would result in selling Holders of the Registrable Notes
covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Registrable Notes or such Exchange Notes during that
period unless such action is required by applicable law or unless the Obligors
comply with this Agreement, including without limitation, the provisions of
clauses 5(c) (v) and (vi) below.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), if any, promptly (but in any event within two business days),
and confirm such notice in writing, (i) when a Prospectus or any prospectus
supplement or post-effective amendment thereto has been filed, and, with respect
to a Registration Statement or any post-effective amendment thereto, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment
thereto including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance by
the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
Prospectus or the initiation of any proceedings for that purpose, (iii) if at
any time when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the Obligors
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(n) below cease to be true and correct, (iv) of the receipt by any
of the Obligors of any notification with respect to the suspension of the
qualification or
14
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in, or amendments or supplements to,
such Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) of any Obligor's reasonable determination
that a post-effective amendment to a Registration Statement would be necessary
or appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable Notes
or the Exchange Notes to be sold by any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is issued, to use their reasonable best
efforts to obtain the withdrawal of any such order as promptly as practicable.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter(s), if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriter(s), if any, or such Holders reasonably request to be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
15
(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of Registrable Notes who so
requests and to each such Participating Broker-Dealer who so requests and to
counsel and the managing underwriter(s), if any, without charge, one conformed
copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, deliver to each selling Holder of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, their counsel, and the
managing underwriter or underwriters, if any, without charge, as many copies of
the Prospectus or Prospectuses (including each form of preliminary Prospectus)
and each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to the
last paragraph of this Section 5, each Obligor hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as the
case may be, and the managing underwriter or underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use their reasonable best efforts to register or qualify,
and to cooperate
16
with the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or underwriters, if
any, and their respective counsel in connection with the registration or
qualification of (or exemption from such registration or qualification), such
Registrable Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing under writer or underwriters, if any, reasonably
request in writing, provided that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Obligors agree to cause their counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Notes held by Participating Broker-Dealers or
the Registrable Notes covered by the applicable Registration Statement; provided
that no Obligor shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in any such jurisdiction
where it is not otherwise so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use their reasonable best efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the managing underwriter or underwriters, if
any, to consummate the disposition of such Registrable Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case each Obligor will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
17
(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by paragraph 5
(c) (v) or 5 (c) (vi), as promptly as reasonably practicable prepare and
(subject to Section 5(a)) file with the SEC, at the joint and several expense of
each Obligor, a supplement or posteffective amendment to the Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Notes being sold thereunder or to the purchasers of the Exchange Notes to whom
such Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(l) Use their reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the case may
be, to be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate principal amount of Registrable Notes covered
by such Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) issue certificates for the
Registrable Notes or Exchange Notes, as the case may be, in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number for
the Registrable Notes or Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting agreement
upon such reasonable terms and conditions as are customary in underwritten
offerings of debt securities similar to the Notes and take all such other
actions as are reasonably requested by the managing underwriter(s), if any, in
order to expedite or facilitate the registration or the disposition of such
Registrable Notes, and in such connection, (i) make such reasonable
representations and warranties to the managing underwriter or
18
underwriters on behalf of any underwriters, with respect to the business of the
Company and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Obligors and updates thereof
in form and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the managing underwriter or underwriters covering the
matters customarily covered in opinions received in underwritten offerings of
debt securities similar to the Notes and such other customary matters as may be
reasonably requested by the managing underwriter(s); (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Obligors (and, if necessary, any other independent certified
public accountants of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to the managing underwriter or underwriters
on behalf of any underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings of debt securities similar to the Notes and such
other matters as may be reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any selling Holder of such
Registrable Notes being sold, or each such Participating Broker-Dealer, as the
case may be, the managing under writer or underwriters participating in any such
disposition of Registrable Notes, if
19
any, and any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records") as shall
be reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the Company
to supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement. Records which the
Company determines, in good faith, to be confidential and any Records which they
notify the Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or correct a
material misstatement or material omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (iii) the information in such Records
has been made generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer or underwriter will
be required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Obligors or for any
purpose other than in connection with such Registration Statement unless and
until such is made generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give prompt notice to
the Company and allow the Company to undertake appropriate action to prevent
disclosure of the Records deemed confidential at their expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2 (a), as the case may be, to be qualified
under the TIA not later than the effective date of the Exchange Registration
Statement or the first Registration Statement relating to the Registrable Notes;
and in connection there with, cooperate with the trustee under any such
indenture and Holders of the Registrable Notes to effect such changes to such
indenture as may be required for such indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use their respective reasonable best
efforts to cause such trustee to execute, all forms and documents required to be
filed with the SEC to enable such indenture to be so qualified in a timely
manner.
20
(q) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 90 days after the end of any 12-month period (i)
commencing at the end of any fiscal quarter in which Registrable Notes are sold
to underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Obligors, in a form reasonable and
customary for underwritten offerings of debt securities similar to the Notes, ad
dressed to the Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as the case may be,
and which includes an opinion that (i) each Obligor has duly authorized,
executed and delivered the Exchange Notes and Private Exchange Notes and the
related indenture and (ii) each of the Exchange Notes or the Private Exchange
Notes, as the case may be, and the Purchase Agreement constitute a legal, valid
and binding obligation of each Obligor, enforceable against each Obligor in
accordance with its respective terms (with reasonable and customary exceptions
and qualifications).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the Obligors
(or to such other Person as directed by the Obligors) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Obligors
shall ▇▇▇▇, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being canceled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; and, in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
21
(u) Use their respective reasonable best efforts to take all
other reasonable steps necessary to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Obligors may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Obligors such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, as the
Obligors may, from time to time, reasonably request. The Obligors may exclude
from such registration the Registrable Notes of any seller or Participating
Broker-Dealer who fails to furnish such information within a reasonable time
after receiving such request. Each seller as to which any Shelf Registration is
being effected agrees to furnish promptly to the Obligors all information
required to be disclosed in order to make the information previously furnished
to the Obligors by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5 (c) (ii), 5 (c) (iv), 5 (c) (v) or 5 (c) (vi) hereof,
such Holder will forthwith discontinue disposition of such Registrable Notes
covered by such Registration Statement or Prospectus or Exchange Notes to be
sold by such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k), or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. If so requested by an Obligor, each Holder will use
commercially reasonable efforts to deliver to the requesting Obligor (at such
Obligor's cost) all copies, other than permanent file copies, then in such
Holder's possession, of the requested Prospectus within a reasonable period
after receipt of such notice. In the event the Company shall give any such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such
22
notice to and including the date when each seller of Registrable Notes covered
by such Registration Statement or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) or
(y) the Advice.
6. Registration Expenses
(a) All reasonable fees and expenses incident to the
performance of or compliance with this Agreement by the Obligors shall be borne
by the Obligors, jointly and severally, whether or not the Exchange Offer or a
Shelf Registration is filed or becomes effective, including, without limitation,
(i) all registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions in the United States (x) where the Holders of Registrable Notes
are located, in the case of the Exchange Notes, or (y) as provided in Section
5(h), in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is reasonably requested by the managing underwriter or
underwriters, if any, or, in respect of Registrable Notes or Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, if
reasonably requested by the Holders of a majority in aggregate principal amount
at maturity of the Registrable Notes included in any Registration Statement or
of such Exchange Notes, as the case may be), (iii) messenger, telephone and
delivery expenses related thereto, (iv) reasonable fees and disbursements of
counsel for the Obligors and reasonable fees and disbursements of special
counsel for the sellers of Registrable Notes (subject to the provisions of
Section 6(b)), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n) (iii) (including, without limitation,
the expenses of
23
any special audit and "cold comfort" letters required by or incident to such
performance), (vi) rating agency fees, (vii) Securities Act liability
insurance, if the Obligors desire such insurance, (viii) fees and expenses of
the Trustee and its counsel, (ix) fees and expenses of all other Persons
retained by the Obligors, (x) internal expenses of the Obligors (including,
without limitation, all salaries and expenses of officers and employees of the
Obligors performing legal or accounting duties), (xi) the expense of any annual
audit, (xii) the fees and expenses incurred in connection with any listing of
the securities to be registered on any securities exchange and (xiii) the
expenses relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, indentures, securities sales agreements and
any other documents necessary in order to comply with this Agreement. In the
event of an underwritten offering of Registrable Notes the Company shall not be
responsible for any "roadshow" expenses in connection therewith.
(b) In connection with any Shelf Registration here-under, the
Obligors, jointly and severally, shall reimburse the Holders of the Registrable
Notes being registered in such registration for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount at
maturity of the Registrable Notes to be included in such Registration Statement
and other reasonable out-of-pocket expenses of the Holders of Registrable Notes
incurred in connection with the registration of the Registrable Notes.
(c) Notwithstanding any of the foregoing, the Obligors shall
not have any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Notes.
24
7. Indemnification
(a) Each Obligor, jointly and severally, agrees to indemnify
and hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the officers
and directors of each such Person, and each Person, if any, who controls any
such Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant"), from and against any and
all losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused by, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary Prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Participant furnished
to the Company in writing by such Participant expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary Prospectus
shall not inure to the benefit of any Participant (or to the benefit of an
officer or director of such Participant or any Person controlling such
Participant) from whom the Person asserting any such losses, claims, damages or
liabilities purchased Registrable Notes or Exchange Notes if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary Prospectus is eliminated or remedied in the related Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) and a copy of the related Prospectus (as so amended or
supplemented) shall have been furnished to such Participant at or prior to the
sale of such Registrable Notes or Exchange Notes, as the case may be, to such
Person.
(b) Each Participant will be required to agree, severally and
not jointly, to indemnify and hold harmless the Obligors, their respective
directors and officers and each Person who controls any of the Obligors within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent
25
as the foregoing indemnity from the Obligors to each Participant, but only with
reference to information relating to such Participant furnished to the Obligors
in writing by such Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any preliminary
Prospectus. The liability of any Participant under this paragraph (b) shall in
no event exceed the proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either paragraph (a) or (b) of this Section 7, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain one counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may reasonably designate in such proceeding
and shall pay the reasonable fees and expenses incurred by such counsel related
to such proceeding. In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person has failed to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and such Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to any such
Indemnifying Person. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate law
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such reasonable fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a majority
in interest of Registrable Notes and Exchange Notes sold by all such
Participants and any such separate firm for the Obligors, their directors,
26
their officers and such control Persons of the Obligors shall be designated in
writing by the Obligors. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its prior written consent, but if
settled with such consent or if there is a final judgment for the plaintiff for
which the Indemnified Person is entitled to indemnification pursuant to this
Agreement, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for reasonable fees and expenses incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement; provided, however, that the
Indemnifying Person shall not be liable for any settlement effected without its
consent pursuant to this sentence if the Indemnifying Party is contesting, in
good faith, the request for reimbursement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is a party and indemnity has been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release (or any other release
reasonably acceptable to the Indemnified Person) of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and
(b) of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein (other than as a
result of the proviso set forth in Section 7(a)), then each Indemnifying Person
under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Obligors on
the one hand and the Participants on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The
27
relative fault of the Obligors on the one hand and the Participants on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Obligors or by
the Participants and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes exceeds the amount of any damages that such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
28
8. Rules 144 and 144A
Each Obligor covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner and, if at any
time the Company is not required to file such reports, it will, upon the request
of any Holder of Registrable Notes, make publicly available other information of
a like nature so long as necessary to permit sales pursuant to Rule 144 or Rule
144A. Each Obligor further covenants that so long as any Registrable Notes
remain outstanding to make available to any Holder of Registrable Notes in
connection with any sale thereof, the information required by Rule 144A(d) (4)
under the Securities Act in order to permit resales of such Registrable Notes
pursuant to (a) such Rule 144A, or (b) any similar rule or regulation hereafter
adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banking
firm or firms that will underwrite the offering and the manager or managers that
will manage the offering will be selected by the Holders of a majority in
aggregate principal amount of such Registrable Notes included in such offering
and shall be reasonably acceptable to the Obligors.
No Holder of Registrable Notes may participate in any
underwritten offering hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
29
10. Miscellaneous
(a) Remedies. In the event of a breach by any Obligor of any
of its obligations under this Agreement, other than the occurrence of an event
which requires payment of Additional Interest, each Holder of Registrable Notes,
in addition to being entitled to exercise all rights provided herein, in the
Indenture, or, in the case of the Initial Purchasers, in the Purchase Agreement
or granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Each Obligor, jointly and
severally, agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees, jointly and severally, that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(b) Enforcement. The Trustee shall be authorized to enforce
the provisions of this Agreement for the ratable benefit of the Holders.
(c) No Inconsistent Agreements. No Obligor has entered, as of
the date hereof, and no Obligor shall enter, after the date of this Agreement,
into any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. No Obligor has entered or will
enter into any agreement with respect to any of its securities which will grant
to any Person piggy-back rights with respect to a Registration Statement
required to be filed under this Agreement.
(d) Adjustments Affecting Registrable Notes. No Obligor shall,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Obligors have obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount at maturity of Registrable Notes. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a
30
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount at
maturity of the Registrable Notes being sold by such Holders pursuant to such
Registration Statement, provided that the provisions of this sentence may not
be amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(f) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day courier or telecopier:
(i) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address given by the Trustee to the
Obligors; and
(ii) if to the Obligors, to Radio Unica Corp., ▇▇▇▇ ▇.▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer,
with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention: C. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: (i) when delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) one business day after being timely delivered to a next-day courier; and
(iv) when receipt is acknowledged by the addressee, if telecopied.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes; provided that, with respect
to the indemnity and contribution agreements in Section 7, each Holder of
Registrable Notes subsequent to the Initial Purchasers shall be bound by the
terms thereof if such Holder elects to include Registrable Notes in a Shelf
Registration; provided, how ever, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Notes.
31
(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PER FORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein.
(m) Joint and Several Obligations. Unless otherwise stated
herein, each of the obligations of the Obligors under this Agreement shall be
joint and several obligations of each of them.
(n) Notes Held by the Obligors or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Obligors or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in deter-
32
mining whether such consent or approval was given by the Holders of such
required percentage.
33
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
RADIO UNICA CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF SAN FRANCISCO INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
ORO SPANISH BROADCASTING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
34
RADIO UNICA OF SAN FRANCISCO
LICENSE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF MIAMI LICENSE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
RADIO UNICA OF LOS ANGELES LICENSE
CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
35
RADIO UNICA OF SAN ANTONIO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
RADIO UNICA NETWORK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
RADIO UNICA SALES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
36
1. The foregoing Agreement is
2. hereby confirmed and accepted as
3. of the date first above written.
4. CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
5. BY: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------
6. Name: ▇▇▇ ▇▇▇▇▇▇▇
7. Title: Director
8. BEAR, ▇▇▇▇▇▇▇ & CO. INC.
9. By:
------------------------------
10. Name:
11. Title:
37
1. The foregoing Agreement is
2. hereby confirmed and accepted as
3. of the date first above written.
4. CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
5. BY:
------------------------------
6. Name:
7. Title:
8. BEAR, ▇▇▇▇▇▇▇ & CO. INC.
9. By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
10. Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
11. Title: Managing Director
38