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REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1999
By and Among
HVIDE MARINE INCORPORATED
as Issuer
THE GUARANTORS
named herein
and
BANKERS TRUST CORPORATION
and
GREAT AMERICAN LIFE INSURANCE
GREAT AMERICAN INSURANCE COMPANY
NEW ENERGY CORP.
AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY
STONEWALL INSURANCE COMPANY
WORLDWIDE INSURANCE COMPANY
AMERICAN NATIONAL FIRE INSURANCE COMPANY
as Purchasers
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$95,000,000
Aggregate Principal Amount At Maturity
12 1/2% SENIOR SECURED NOTES DUE 2007
-i-
TABLE OF CONTENTS
Page
1. Definitions.......................................................1
2. Exchange Offer....................................................5
3. Shelf Registration................................................9
4. Additional Interest...............................................9
5. Registration Procedures..........................................12
6. Registration Expenses............................................23
7. Indemnification..................................................24
8. Rule 144 and 144A................................................29
9. Underwritten Registrations.......................................29
10. Miscellaneous....................................................30
(a) No Inconsistent Agreements..................................30
(b) Adjustments Affecting Registrable Securities................30
(c) Amendments and Waivers......................................30
(d) Notices30
(e) Successors and Assigns......................................32
(f) Counterparts................................................32
(g) Headings....................................................32
(h) Governing Law...............................................33
(i) Severability................................................33
(j) Securities Held by the Issuer or its Affiliates.............33
(k) Third Party Beneficiaries...................................33
(l) Entire Agreement............................................33
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of December 15, 1999 by and among Hvide Marine Incorporated, a Delaware
corporation (the "Company"), the Guarantors named on the signature pages hereto
(the "Guarantors" and, together with the Company, the "Issuers") and Bankers
Trust Corporation and Great American Life Insurance Company, Great American
Insurance Company, New Energy Corp., American Empire Surplus Lines Insurance
Company, Stonewall Insurance Company, Worldwide Insurance Company and American
National Fire Insurance Company (the "Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of December 15, 1999, by and among the Company, the
Guarantors and the Purchasers (the "Purchase Agreement") that provides for the
sale by the Company to the Purchasers of $95,000,000 aggregate principal amount
at maturity of the Company's 12 1/2% Senior Secured Notes due 2007 (the
"Notes"). The Notes will be guaranteed (the "Guarantees") on a senior basis by
the Guarantors. The Notes and the Guarantees together are herein referred to as
the "Securities". In order to induce the Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide the registration rights set forth
in this Agreement for the benefit of the Purchasers and their direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the Purchasers' obligation to purchase the Securities 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:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the first introductory paragraph hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day except a Saturday, a Sunday or any day
on which banking institutions in New York, New York are required or authorized
by law or other governmental action to be closed.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Company: See the first introductory paragraph hereto.
Effectiveness Date: The date that is 210 days after the Issue
Date.
Effectiveness Period: See Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a) hereof.
Exchange Registration Statement: See Section 2(a) hereof.
Exchange Securities: See Section 2(a) hereof.
Filing Date: Within 120 days after the Issue Date.
Holder: The Purchasers, for so long as the Purchasers own any
Registrable Security or Registrable Securities, and each of their successors,
assigns and direct and indirect transferees who become beneficial owners of any
Registrable Security or Registrable Securities.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of December 15, 1999 by and
among the Company, the Guarantors and State Street Bank and Trust Company, as
trustee, pursuant to which the Securities are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Inspectors: See Section 5(n) hereof.
Interest Payment Date: As defined in the Indenture.
Issue Date: The date on which the original Securities were
sold to the Purchasers pursuant to the Purchase Agreement.
Issuers: See the introductory paragraph hereto.
NASD: See Section 5(s) hereof.
Notes: See the second introductory paragraph hereto.
Participant: See Section 5(s) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph
hereto.
Purchasers: See the first introductory paragraph hereto.
Record Date: As defined in the Indenture.
Records: See Section 5(o) hereof.
Registrable Securities: Each Security upon original issuance
of the Securities and at all times subsequent thereto, until in the case of any
such Security or Exchange Security, as the case may be, the earliest to occur of
(i) a Registration Statement covering such Security or Exchange Security, as the
case may be, has been declared effective by the SEC and such Security or
Exchange Security, as the case may be, has been disposed of in accordance with
such effective Registration Statement, (ii) such Security or Exchange Security,
as the case may be, is sold in compliance with Rule 144 or may be sold without
volume or manner of sale restrictions under Rule 144, (iii) such Security has
been exchanged for an Exchange Security or Exchange Securities pursuant to an
Exchange Offer and is entitled to be resold without complying with the
prospectus delivery requirements of the Securities Act and (iv) such Security or
Exchange Security, as the case may be, ceases to be outstanding for purposes of
the Indenture.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Registration Statement and
any registration statement filed in connection with a Shelf Registration, filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC 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.
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: See the second introductory paragraph hereto.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(a) hereof.
Shelf Registration Effectiveness Date: The date that is 90
days after the date on which the Company becomes obligated to file such Shelf
Registration unless the Issuers have not consummated the Exchange Offer within
240 days of the Issue Date, in which case the Shelf Registration Effectiveness
Date shall be the 241st day after the Issue Date.
Shelf Registration Filing Date: The date that is the later of
120 days after the Issue Date and 60 days after the date on which the Company
becomes obligated to file such Shelf Registration.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Securities.
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
(a) The Company and the Guarantors shall file with the SEC no later than the
Filing Date an offer to exchange (the "Exchange Offer") any and all of the
Registrable Securities for a like aggregate principal amount of debt securities
of the Company that are identical in all material respects to the Securities
(the "Exchange Securities") (and that are entitled to the benefits of the
Indenture or a trust indenture that is identical in all material respects to the
Indenture (other than such changes to the Indenture or any such identical trust
indenture as are necessary to comply with any requirements of the SEC to effect
or maintain the qualification thereof under the TIA) and that, in either case,
has been qualified under the TIA), except that the Exchange Securities shall
have been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon. The Exchange
Offer shall be registered under the Securities Act on the appropriate form (the
"Exchange Registration Statement") and shall comply with all applicable rules
and regulations under the Exchange Act. The Company and the Guarantors agree to
use their respective reasonable best efforts to (x) cause the Exchange
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep the Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) consummate the
Exchange Offer on or prior to the 240th day following the Issue Date. If after
such Exchange Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Exchange Registration
Statement shall be deemed not to have become effective for purposes of this
Agreement. Each Holder who participates in the Exchange Offer will be required
to represent in writing that any Exchange Securities 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
Securities in violation of the provisions of the Securities Act and that such
Holder is not an affiliate of the Company or the Guarantors within the meaning
of the Securities Act and is not acting on behalf of any persons or entities who
could not truthfully make the foregoing representations. Upon consummation of
the Exchange Offer in accordance with this Section 2, the provisions of this
Agreement shall continue to apply, mutatis mutandis, solely with respect to
Registrable Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Registrable Securities pursuant to Section 3 hereof. No securities other than
the Exchange Securities shall be included in the Exchange Registration
Statement.
(b) The Company and the Guarantors shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Purchasers, that shall contain a
summary statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities 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 judgment of the Purchasers, represent the prevailing views of the Staff of
the SEC. Such "Plan of Distribution" section shall also expressly permit the use
of the Prospectus by all Persons subject to the prospectus delivery requirements
of the Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Securities.
The Company and the Guarantors shall use their respective
reasonable best efforts to keep the Exchange Registration Statement effective
and to amend and supplement the Prospectus contained therein in order to permit
such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as is necessary to comply with applicable law in connection with any resale of
the Exchange Securities (the "Applicable Period").
Interest on the Exchange Securities will accrue from the last
interest payment date on which interest was paid on the Securities surrendered
in exchange therefor or, if no interest has been paid on the Securities, from
the Issue Date.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
(1) 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;
(2) utilize the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Securities at any time prior to the
close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open by sending to the institution
specified in the letter of transmittal and related documents, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Securities delivered for
exchange and a statement that such Holder is withdrawing its election
to have such Securities exchanged; and
(4) otherwise comply in all material respects with all applicable laws, rules
and regulations.
As soon as practicable after the close of the Exchange Offer,
the Company and the Guarantors shall:
(1) accept for exchange all Securities properly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(2) deliver to the Trustee for cancellation all Securities so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder
Securities or Exchange Securities, as the case may be, equal in principal
amount to the Securities of such Holder so accepted for exchange.
The Exchange Securities may be issued under (i) the Indenture
or (ii) an indenture identical in all material respects to the Indenture, which
in either event shall provide that the Exchange Securities shall not be subject
to the transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Securities and the Securities shall
vote and consent together on all matters as one class and that neither the
Exchange Securities nor the Securities will have the right to vote or consent as
a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Issuers reasonably determine after
conferring with counsel that they are not permitted to effect an Exchange Offer,
(ii) the Exchange Offer is not consummated within 210 days of the Issue Date or
(iii) in the case of any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Securities on the date of the exchange that may
be sold without restriction under state and federal securities laws (other than
due solely to the status of such Holder as an affiliate of the Company or any of
the Guarantors within the meaning of the Securities Act), then the Company shall
promptly deliver written notice thereof (the "Shelf Notice") to the Trustee and
in the case of clauses (i) and (ii), all Holders and, in the case of clause
(iii), the affected Holder, and shall file a Shelf Registration pursuant to
Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Company and the Guarantors shall file with the SEC
no later than the Shelf Registration Filing Date a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Securities (the "Shelf Registration"). The Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of such
Registrable Securities for resale by Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings).
The Company and the Guarantors shall use their respective
reasonable best efforts to cause the Shelf Registration to be declared effective
under the Securities Act on or prior to the Shelf Registration Effectiveness
Date and to keep the Shelf Registration continuously effective under the
Securities Act until the date that is two years from the Issue Date (the
"Effectiveness Period"), or such shorter period ending when all Registrable
Securities covered by the Shelf Registration have been sold in the manner set
forth and as contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration ceases to be effective
for any reason at any time during the Effectiveness Period (other than because
of the sale of all of the securities registered thereunder), the Company and the
Guarantors shall use their respective reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Company and the Guarantors shall promptly
supplement and amend the Shelf Registration, if required by the Securities Act.
4. Additional Interest
(a) The Company, the Guarantors and the Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Company and the Guarantors
fail to fulfill their respective obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Company and the Guarantors agree to pay, as
liquidated damages, additional interest on the Securities ("Additional
Interest") under the circumstances and to the extent set forth below (without
duplication):
(i) if the Exchange Registration Statement has not been filed on or prior to
the Filing Date or the Shelf Registration has not been filed on or prior to
the Shelf Registration Filing Date, Additional Interest shall accrue on the
Securities over and above the stated interest at a rate of 0.50% per annum
for the first 90 days immediately following the Filing Date or the Shelf
Registration Filing Date, as the case may be, such Additional Interest rate
increasing by an additional 0.50% per annum at the beginning of each
subsequent 90-day period;
(ii) if the Exchange Registration Statement is not declared effective by the SEC
on or prior to the Effectiveness Date or if the Shelf Registration is not
declared effective by the SEC on or prior to the Shelf Registration
Effectiveness Date, Additional Interest shall accrue on the Securities
included or that should have been included in such Registration Statement
over and above the stated interest at a rate of 0.50% per annum for the
first 90 days immediately following the Effectiveness Date or the Shelf
Registration Effectiveness Date, as the case may be, such Additional
Interest rate increasing by an additional 0.50% per annum at the beginning
of each subsequent 90-day period; or
(iii)if either (A) the Company and the Guarantors have not exchanged Exchange
Securities for all Securities validly tendered in accordance with the terms
of the Exchange Offer on or prior to the 240th day after the Issue Date or
(B) the Exchange Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated or (C) if
applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period without being succeeded within five Business Days by a
post-effective amendment that is itself declared effective, or an effective
shelf registration statement covering the same Securities, then Additional
Interest shall be accrued on the Securities(over and above any interest
otherwise payable on the Securities) at a rate of 0.50% per annum on (x)
the 240th day after the Issue Date, in the case of (A) above, or (y) the
day the Exchange Registration Statement ceases to be effective without
being declared effective within five Business Days in the case of (B)
above, or (z) the day such Shelf Registration ceases to be effective, in
the case of (C) above, such Additional Interest rate increasing by an
additional 0.50% per annum at the beginning of each such subsequent 90-day
period (each such event referred to in clauses (i) through (iii), a
"Registration Default") (it being understood and agreed that,
notwithstanding any provision to the contrary, so long as any Security that
is the subject of a Shelf Notice is then covered by an effective Shelf
Registration, no Additional Interest shall accrue on such Security);
provided, however, that the Additional Interest rate on any affected Security
may not exceed at any one time in the aggregate 2.0% per annum; provided,
further, that the Company and the Guarantors shall in no event be required to
pay Additional Interest for more than one Registration Default at any given
time; and provided, further, that (1) upon the filing of the Exchange
Registration Statement or a Shelf Registration (in the case of clause (i) of
this Section 4(a)), (2) upon the effectiveness of the Exchange Registration
Statement or the Shelf Registration (in the case of clause (ii) of this Section
4(a)), or (3) upon the exchange of Exchange Securities for all Securities
tendered (in the case of clause (iii)(A) of this Section 4(a)), or upon the
effectiveness of the Exchange Registration Statement that had ceased to remain
effective (in the case of (iii)(B) of this Section 4(a)) or upon the
effectiveness of the Shelf Registration that had ceased to remain effective (in
the case of (iii)(C) of this Section 4(a)), Additional Interest on the affected
Securities as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue. Notwithstanding the foregoing, no Holder
of Registrable Securities shall be entitled to receive Additional Interest with
respect to such Registrable Securities if such Holder was, at any time while the
Exchange Offer was pending, eligible to exchange, and did not validly tender,
such Registrable Securities for Exchange Securities.
(b) The Company and the Guarantors shall notify the Trustee within one Business
Day after each and every Registration Default. Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash quarterly on each Interest Payment Date (to the Holders on the
Corresponding Record Dates), commencing with the first such date occurring after
any such Additional Interest commences to accrue. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the relevant Registrable Securities, 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 consisting of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed) and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company and the Guarantors hereunder, the Company and the Guarantors shall:
(a) Prepare and file with the SEC prior to the Filing Date or Shelf
Registration Filing Date, as the case may be, a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3 hereof, and use
their reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided,
however, that, if (1) such filing is pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company and the
Guarantors shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least three Business Days prior to such filing). The Company and
the Guarantors shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Securities covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, or their counsel, or the managing underwriters, if any, shall
reasonably object within two Business Days of receiving such documents.
(b) Prepare and file with the SEC such amendments and post-effective amendments
to each Shelf Registration or Exchange Registration Statement, as the case
may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented
by any prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) promulgated under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Company and
the Guarantors shall be deemed not to have used their respective reasonable
best efforts to keep a Registration Statement effective during the
Applicable Period if each of the Company and the Guarantors voluntarily
takes any action that would result in selling Holders of the Registrable
Securities covered thereby or Participating Broker-Dealers seeking to sell
Exchange Securities not being able to sell such Registrable Securities or
such Exchange Securities during that period, unless such action is required
by applicable law or unless the Company and the Guarantors comply with this
Agreement, including without limitation, the provisions of paragraph 5(k)
hereof and the last paragraph of this Section 5. Notwithstanding the
foregoing, but without limiting the Issuers' obligations under Section 4
hereof, the Issuers may postpone taking any action with respect to a
supplement or amendment with respect to a Registration Statement or
Prospectus contained therein for a reasonable period of time after the
occurrence of any fact or event contemplated by Section 5(c)(v) or Section
5(c)(vi) (not exceeding 45 days) if, in the good faith opinion of the Board
of Directors of the Issuers, the supplement or amendment would adversely
affect a material financing, acquisition or disposition of assets or stock,
merger or other comparable transaction or would require the Issuer's to
make public disclosure of information the public disclosure of which would
have a material adverse effect upon the Issuers; provided that the Issuers
shall not delay such action pursuant to the foregoing more than once in any
12 month period.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, notify the selling Holders of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their counsel and the managing underwriters, if any, promptly (but in any
event within two Business Days) and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuers, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance
by the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) of the receipt by the Issuers of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
written threat of any proceeding for such purpose, (iv) of the happening of
any event, the existence of any condition or any information becoming known
that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the
making of any 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 (v) of the Issuers' determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use their respective 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
Securities or the Exchange Securities 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 at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if requested by
the managing underwriter or underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Securities being
sold in connection with an underwritten offering, (i) promptly incorporate
in a prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters, if any, such Holders or counsel
for any of them determine is reasonably necessary to be included therein
and (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Issuers have
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, furnish to each selling Holder of Registrable
Securities and to each such Participating Broker-Dealer who so requests and
to their respective counsel and each managing underwriter, if any, at the
sole expense of the Issuers, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment
thereto, including financial statements and schedules and, if requested,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, deliver to each selling Holder of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their respective counsel and the underwriters, if any, at the sole expense
of the Issuers, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons
may reasonably request; and, subject to the last paragraph of this Section
5, the Issuers hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the
case may be, and the underwriters or agents, if any, and dealers, if any,
in connection with the offering and sale of the Registrable Securities
covered by, or the sale by Participating Broker-Dealers of the Exchange
Securities pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Securities or Exchange
Securities or any delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, to use their reasonable
best efforts to register or qualify and to cooperate with the selling
Holders of Registrable Securities or each such Participating Broker-Dealer,
as the case may be, the managing underwriter or underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer or the managing underwriter or
underwriters reasonably request in writing; provided, however, that where
Exchange Securities held by Participating Broker-Dealers or Registrable
Securities are offered other than through an underwritten offering, the
Issuers 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); use their reasonable best efforts to 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 Securities
held by Participating Broker-Dealers or the Registrable Securities covered
by the applicable Registration Statement; provided, however, that none of
the Company or the Guarantors 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 then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate
with the selling Holders of Registrable Securities and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities 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 Securities 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 its reasonable best efforts to cause the Registrable Securities covered
by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the Holders thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Company and the Guarantors will cooperate in
all reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, upon the occurrence of any event contemplated
by Sections 5(c)(iv) or 5(c)(v), hereof, as promptly as practicable prepare
and (subject to Sections 5(a) and 5(b) hereof) file with the SEC, at the
Issuers' sole expense, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder or to the
purchasers of the Exchange Securities 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 respective reasonable best efforts to cause the Registrable
Securities covered by a Registration Statement or the Exchange Securities,
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 Securities covered by such Registration Statement or the
Exchange Securities, 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 Securities, (i) provide the Trustee with certificates for
the Registrable Securities or Exchange Securities, 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 Securities or Exchange
Securities, as the case may be.
(n) In connection with any underwritten offering of Registrable Securities
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Securities and take all such other actions as are reasonably requested by
the managing underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Securities and, in
such connection, (i) make such representations and warranties to, and
covenants with, the underwriters with respect to the business of the
Issuers and their subsidiaries (including any acquired business, properties
or entity, if applicable) 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 Securities, and
confirm the same in writing if and when requested; (ii) obtain the written
opinion of counsel to the Issuers and written updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of debt
similar to the Securities and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Issuers or of any business acquired by the Issuers for
which financial statements and financial data are, or are required to be,
included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of debt securities
similar to the Securities and such other matters as reasonably requested by
the managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section
7 hereof (or such other provisions and procedures acceptable to Holders of
a majority in aggregate principal amount of Registrable Securities 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 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, upon reasonable advance notice make available
for inspection by any selling Holder of such Registrable Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent retained by
any such selling Holder or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours without
interfering in the orderly business of the Company or Guarantors, all
financial records, pertinent corporate documents and instruments of the
Issuers and their subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the respective officers, directors
and employees of the Issuers and their subsidiaries to supply all
information reasonably requested by any such Inspector in connection with
such Registration Statement. Records that the Issuers determine, in good
faith, to be confidential and any Records that they notify the Inspectors
are confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction (after giving prior notice to the Company
and providing the Company an opportunity to seek a protective order), (iii)
after giving reasonable prior notice to the Company, disclosure of such
information is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector
and arising out of, based upon, relating to or involving this Agreement or
any transactions contemplated hereby or arising hereunder or (iv) the
information in such Records has been made generally available to the public
other than as a result of a disclosure or failure to safeguard such
information by any Inspector. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to
agree that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Issuers unless and until such
information is generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will
be required to further agree that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to
the Issuers and allow the Issuers to undertake appropriate action to
prevent disclosure of the Records deemed confidential at the Issuers' sole
expense.
(p) Provide an indenture trustee for the Registrable Securities or the Exchange
Securities, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange
Offer or the first Registration Statement relating to the Registrable
Securities; and in connection therewith, cooperate with the trustee under
any such indenture and the Holders of the Registrable Securities, 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 reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable such indenture to be
so qualified in a timely manner.
(q) Comply in all material respects with all applicable rules and regulations
of the SEC and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder or any similar rule promulgated under the
Securities Act.
(r) Upon consummation of an Exchange Offer, obtain an opinion of counsel to the
Issuers, who may, at the Issuers' election, be internal counsel to the
Issuers, in a form customary for underwritten transactions, addressed to
the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer, that the Exchange Securities, and the
related indenture constitute legal, valid and binding obligations of the
Issuers, enforceable against the Issuers in accordance with their
respective terms, subject to customary exceptions and qualifications.
(s) If an Exchange Offer is to be consummated, upon delivery of the Registrable
Securities by Holders to the Company (or to such other Person as directed
by the Company) in exchange for the Exchange Securities, the Company shall
▇▇▇▇, or cause to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange; in
no event shall such Registrable Securities be marked as paid or otherwise
satisfied.
(t) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD"); provided, that none
of the Issuers shall take any position during review by the NASD that
would, in any manner, create the implication that the offering of the
Securities on the Closing Date should be or is subject to the rules and
regulations of the NASD.
(u) Use their respective reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
The Company and the Guarantors may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company and the Guarantors such information regarding such seller and the
distribution of such Registrable Securities as the Company and the Guarantors
may, from time to time, reasonably request. The Company and the Guarantors may
exclude from such registration the Registrable Securities of any seller who
fails to furnish such information within 15 days after receiving such request
and in such event shall have no further obligation under this Agreement
(including, without limitation, obligations under Section 4 hereof) with respect
to such seller or any subsequent holder of such Registrable Securities. Each
seller as to which any Shelf Registration is being effected agrees to furnish
promptly to the Company and the Guarantors all information required to be
disclosed in order to make the information previously furnished to the Company
and the Guarantors by such seller not materially misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon actual receipt of any notice from the Company of the happening of any
event of the kind described in Sections 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus or Exchange
Securities to be sold by such Holder or Participating Broker-Dealer, as the case
may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Company shall give any
such notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or (y) the Advice; provided, however, that
the Effectiveness Period shall not be extended for a period longer than two
years from the Issue Date.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance with this
Agreement by the Company and the Guarantors shall be borne by the Company and
the Guarantors whether or not the Exchange Registration Statement 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 Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for investment
under the laws of such jurisdictions (x) where the holders of Registrable
Securities are located, in the case of the Exchange Securities, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Securities or Exchange
Securities in a form eligible for deposit with The Depository Trust Company and
of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in any
Registration Statement or sold by any Participating Broker-Dealer, as the case
may be, (iii) fees and disbursements of counsel for the Company and reasonable
fees and disbursements of special counsel for the sellers of Registrable
Securities(subject to the provisions of Section 6(b) hereof), (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) rating agency fees, if any, and any fees associated with
making the Registrable Securities or Exchange Securities eligible for trading
through The Depository Trust Company, (vi) reasonable fees and expenses of all
other Persons retained by the Company, (vii) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (viii) the
expense of any annual audit, listing of the securities to be registered on any
securities exchange, if applicable, and (ix) the expenses relating to printing,
word processing and distributing of all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary to comply with this Agreement.
(b) The Company and the Guarantors shall (i) reimburse the Holders of the
Registrable Securities being registered in a Shelf Registration for the
reasonable fees and disbursements of not more than one counsel chosen by the
Holders of a majority in aggregate principal amount of the Registrable
Securities to be included in such Registration Statement and (ii) reimburse
reasonable out-of-pocket expenses (other than legal expenses) of Holders of
Registrable Securities incurred in connection with the registration and sale of
the Registrable Securities pursuant to a Shelf Registration or in connection
with the exchange of Registrable Securities pursuant to the Exchange Offer.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each Holder of Registrable Securities being registered shall pay all
commissions, placement agent fees and underwriting discounts and commissions
with respect to any Registrable Securities or Exchange Securities sold by it.
7. Indemnification
(a) Each of the Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless each Holder of Registrable Securities and each
Participating Broker-Dealer selling Exchange Securities during the Applicable
Period, the officers and directors of each such Person, and each other 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 pursuant to which the offering of such Registrable Securities or
Exchange Securities, as the case may be, is registered (or any amendment
thereto) or related Prospectus (or any amendments or supplements thereto) or any
related preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that none of the Company or the Guarantors will be required to indemnify a
Participant if (i) such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Participant
furnished or confirmed to the Company in writing by or on behalf of such
Participant expressly for use therein or (ii) if such Participant sold to the
Person asserting the claim the Registrable Securities or Exchange Securities
that are the subject of such claim and such untrue statement or omission or
alleged untrue statement or omission was contained or made in any preliminary
prospectus and corrected in the Prospectus or any amendment or supplement
thereto and it is established by the Company in the related proceeding that such
Participant failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Registrable Securities or Exchange Securities sold to such Person if
required by applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify and hold
harmless the Company and each of the Guarantors, the Company's directors and
officers, each Guarantor's directors and officers and each Person who controls
the Company and the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and the Guarantors to each Participant, but
only (i) with reference to information relating to such Participant furnished or
confirmed to the Company in writing by or on behalf of such Participant
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto or any preliminary prospectus or (ii) with respect to any
untrue statement or representation made by such Participant in writing to the
Company. The liability of any Participant under this paragraph shall in no event
exceed the proceeds received by such Participant from sales of Registrable
Securities or Exchange Securities giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability that it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that, unless there exists a conflict among Indemnified Persons, the
Indemnifying Person shall not, in connection with any one such proceeding or
separate but substantially similar related proceeding in the same jurisdiction
arising out of the same general allegations, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
promptly as they are incurred. 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 Securities and
Exchange Securities sold by all such Participants and any such separate firm for
the Company, the Guarantors and their respective directors and officers and such
control Persons of the Company and the Guarantors as shall be designated in
writing by the Company. 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 be a final non-appealable judgment for the
plaintiff for which the Indemnified Person is entitled to indemnification
pursuant to this Agreement, the Indemnifying Person agrees to indemnify and hold
harmless each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. 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 actually
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 Person 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 or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in the first and second paragraphs of
this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
(e) The parties agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any reasonable legal or
other expenses actually incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall a Participant be required to
contribute any amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Securities or Exchange Securities, as the
case may be, exceeds the amount of any damages that such Participant has
otherwise been required to pay or has paid by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 7 will
be in addition to any liability that the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
8. Rule 144 and 144A
The Company and the Guarantors covenant that they 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 in accordance with the requirements of the Securities Act and the
Exchange Act. The Company and the Guarantors further covenant, if at any time
the Company and the Guarantors are not required to file such reports, for so
long as any Registrable Securities remain outstanding, to make available upon
request to any Holder or beneficial owner of Registrable Securities in
connection with any sale thereof and any prospective purchaser of such
Registrable Securities from such Holder or beneficial owner the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Registrable Securities pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Company and the Guarantors and reasonably acceptable to the
Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. Except for registration rights agreements to
which the Company is a party existing on the Issue Date, the Issuers have not
entered into, as of the date hereof, and shall not, after the date of this
Agreement, enter into any agreement with respect to any of the Company's
securities that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Issuers have not entered and will not enter into any
agreement with respect to any of the Company's securities (including the
Warrants) that will grant to any Person piggy-back registration rights with
respect to any Registration Statement filed pursuant to this Agreement.
(b) Adjustments Affecting Registrable Securities. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, otherwise than with the prior written
consent of the Holders of not less than a majority in aggregate principal amount
of the then outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Securities may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Securities being sold
by such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including without limitation
any notices or other communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Securities or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Purchasers as follows:
BANKERS TRUST CORPORATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
AMERICAN MONEY MANAGEMENT CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
2. if to the Purchasers, at the addresses specified in Section 10(d)(1)
3. if to the Issuers, at the address as follows:
HVIDE MARINE INCORPORATED
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
P.O. Box 13038
Port Everglades Station
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
with copies to:
Kronish ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
and
▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇
Watergate, Eleventh Floor
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK. 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.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their 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. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or their Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Securities and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase Agreement and
the Indenture, is intended by the parties as a final and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Purchasers on the one
hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HVIDE MARINE INCORPORATED
By:
Name:
Title:
GUARANTORS
HMI OPERATORS, INC.
HVIDE MARINE INTERNATIONAL, INC.
HVIDE MARINE TOWING, INC.
HVIDE MARINE TOWING SERVICES, INC.
HVIDE MARINE TRANSPORT, INCORPORATED
LONE STAR MARINE SERVICES, INC.
OFFSHORE MARINE MANAGEMENT INTERNATIONAL, INC.
SEABULK ALBANY, INC.
SEABULK ALKATAR, INC.
SEABULK ARABIAN, INC.
SEABULK ARCTIC EXPRESS, INC.
SEABULK ARIES II, INC.
SEABULK ARZANAH, INC.
SEABULK BARRACUDA, INC.
SEABULK BATON ROUGE, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK BUL HANIN, INC.
SEABULK CAPRICORN, INC.
SEABULK CARDINAL, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK ▇▇▇▇▇▇▇, INC.
SEABULK CHAMP, INC.
SEABULK ▇▇▇▇▇▇▇▇▇▇▇, INC.
SEABULK CLAIBORNE, INC.
SEABULK CLIPPER, INC.
SEABULK COMMAND, INC.
SEABULK CONDOR, INC.
SEABULK CONSTRUCTOR, INC.
SEABULK COOT I, INC.
SEABULK COOT II, INC.
SEABULK CORMORANT, INC.
SEABULK CYGNET I, INC.
SEABULK CYGNET II, INC.
SEABULK DANAH, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK ▇▇▇▇▇▇, INC.
SEABULK DEFENDER, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK DISCOVERY, INC.
SEABULK DUKE, INC.
SEABULK EAGLE, INC.
SEABULK EAGLE II, INC.
SEABULK EMERALD, INC.
SEABULK ENERGY, INC.
SEABULK EXPLORER, INC.
SEABULK FALCON, INC.
SEABULK FALCON II, INC.
SEABULK FREEDOM, INC.
SEABULK FULMAR, INC.
SEABULK GABRIELLE, INC.
SEABULK GANNET I, INC.
SEABULK GANNET II, INC.
SEABULK GAZELLE, INC.
SEABULK GIANT, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK HABARA, INC.
SEABULK HAMOUR, INC.
SEABULK HARRIER, INC.
SEABULK HATTA, INC.
SEABULK HAWAII, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HERON, INC.
SEABULK HORIZON, INC.
SEABULK HOUBARE, INC.
SEABULK IBEX, INC.
SEABULK ▇▇▇▇▇▇, INC.
SEABULK JASPER, INC.
SEABULK JEBEL ALI, INC.
SEABULK KATIE, INC.
SEABULK KESTREL, INC.
SEABULK KING, INC.
SEABULK KNIGHT, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK LARA, INC.
SEABULK LARK, INC.
SEABULK LIBERTY, INC.
SEABULK LINCOLN, INC.
SEABULK LULU, INC.
SEABULK MAINTAINER, INC.
SEABULK MALLARD, INC.
SEABULK ▇▇▇▇▇▇▇, INC.
SEABULK ▇▇▇▇▇▇ I, INC.
SEABULK ▇▇▇▇▇▇ ▇▇, INC.
SEABULK MASTER, INC.
SEABULK MERLIN, INC.
SEABULK MUBARRAK, INC.
SEABULK NEPTUNE, INC.
SEABULK OCEAN SYSTEMS
CORPORATION
SEABULK OCEAN SYSTEMS HOLDINGS
CORPORATION
SEABULK OFFSHORE, LTD.
By its general partner Seabulk Tankers, Ltd.
By its general partner Hvide Marine Transport,
Incorporated
SEABULK OFFSHORE ABU DHABI, INC.
SEABULK OFFSHORE DUBAI, INC.
SEABULK OFFSHORE GLOBAL
HOLDINGS, INC.
SEABULK OFFSHORE HOLDINGS, INC.
SEABULK OFFSHORE INTERNATIONAL, INC.
SEABULK OFFSHORE OPERATORS, INC.
SEABULK OFFSHORE OPERATORS
TRINIDAD LIMITED
SEABULK OREGON, INC.
SEABULK ORYX, INC.
SEABULK OSPREY, INC.
SEABULK PELICAN, INC.
SEABULK PENGUIN I, INC.
SEABULK PENGUIN II, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK PERSISTENCE, INC.
SEABULK PETREL, INC.
SEABULK PLOVER, INC.
SEABULK POWER, INC.
SEABULK PRIDE, INC.
SEABULK PRINCE, INC.
SEABULK PRINCESS, INC.
SEABULK PUFFIN, INC.
SEABULK QUEEN, INC.
SEABULK RAVEN, INC.
SEABULK ROOSTER, INC.
SEABULK SABINE, INC.
SEABULK SALIHU, INC.
SEABULK SAPPHIRE, INC.
SEABULK ▇▇▇▇, INC.
SEABULK SEAHORSE, INC.
SEABULK SENGALI, INC.
SEABULK SERVICE, INC.
SEABULK ▇▇▇▇▇, INC.
SEABULK SHINDAGA, INC.
SEABULK SKUA I, INC.
SEABULK SNIPE, INC.
SEABULK ▇▇▇▇▇▇, INC.
SEABULK SWAN, INC.
SEABULK SWIFT, INC.
SEABULK TANKERS, LTD.
By its general partner
Hvide Marine Transport,
Incorporated SEABULK
TAURUS, INC.
SEABULK TENDER, INC.
SEABULK ▇▇▇▇ I, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TRADER, INC.
SEABULK TRANSMARINE II, INC.
SEABULK TREASURE ISLAND, INC.
SEABULK UMM SHAIF, INC.
SEABULK VERITAS, INC.
SEABULK VIRGO I, INC.
SEABULK VOYAGER, INC.
SEABULK ZAKUM, INC.,
each as a Guarantor
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and Treasurer
HMI CAYMAN HOLDINGS, INC.
SEABULK OFFSHORE OPERATORS
NIGERIA LIMITED
SEABULK OFFSHORE U.K. LIMITED
SEABULK RED TERN LIMITED,
each as a Guarantor
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
HVIDE MARINE DE VENEZUELA, S.R.L., as a Guarantor
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
LIGHTSHIP LIMITED PARTNER
HOLDINGS, LLC, as a Guarantor
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
SEAMARK LTD., INC.
SUN STATE MARINE SERVICES, INC.
OCEAN SPECIALTY TANKERS CORPORATION,
each as a Guarantor
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
BANKERS TRUST CORPORATION
By:
Name:
Title:
AMERICAN MONEY MANAGEMENT CORPORATION
By:
Name:
Title: