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EXHIBIT 10.31
GIANT INDUSTRIES, INC.
9% Senior Subordinated Notes Due 2007
REGISTRATION RIGHTS AGREEMENT
August 21, 1997
UBS Securities LLC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
BancAmerica Securities, Inc.
▇▇▇▇▇▇▇▇▇ & Company, Inc.
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Giant Industries, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to UBS Securities LLC, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, BancAmerica Securities, Inc. and ▇▇▇▇▇▇▇▇▇ & Company, Inc.
(collectively, the "Initial Purchasers"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), $150,000,000
aggregate principal amount of its 9% Senior Subordinated Notes Due 2007 (the
"Notes"). The Notes will be issued pursuant to an Indenture, dated as of August
26, 1997 (the "Indenture") between the Company and NBD Bank, National
Association (the "Trustee"). The obligations of the Company with respect to the
Notes will be guaranteed, on a joint and several basis, by the entities listed
on Annex A hereto (the "Subsidiary Guarantors") on the terms and conditions set
forth in the Indenture. For purposes of this Agreement, the term "Notes" shall
include the related guarantees thereof of the Subsidiary Guarantors. As an
inducement to the Initial Purchasers, the Company and the Subsidiary Guarantors
agree with the Initial Purchasers, for the benefit of the holders of the Notes
(including, without limitation, the Initial Purchasers), the Exchange Notes (as
defined below) and the Private Exchange Notes (as defined below) (collectively
the "Holders"), as follows:
1. Registered Exchange Offer. The Company shall, at its own cost, prepare
and, not later than 60 days after (or if the 60th day is not a business day, the
first business day thereafter) the date of original issue of the Notes (the
"Issue Date"), file with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to a proposed offer (the "Registered
Exchange Offer") to the Holders of Transfer Restricted Notes (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Notes, a like aggregate principal amount of
debt securities (the "Exchange Notes") of the Company issued under the Indenture
and identical in all material respects to the Notes (except for the transfer
restrictions relating to the Notes and provisions relating to the matters
described in Section 6 hereof) and the related guarantees of the Subsidiary
Guarantors identical in all material respects to the guarantees of the Notes to
be made by the Subsidiary Guarantors pursuant to the Indenture. For purposes of
this Agreement, the term "Exchange Notes" shall include the related guarantees
thereof of the Subsidiary Guarantors. The Company shall use its best efforts to
cause such Exchange Offer Registration Statement to become effective under the
Securities Act within 120 days (or if the 120th day is not a business day, the
first business day thereafter) after the Issue Date of the Notes and shall keep
the Exchange Offer Registration Statement effective for not less than 30 days
(or longer, if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
"Exchange Offer Registration Period").
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If the Company effects the Registered Exchange Offer, the Company will be
entitled to close the Registered Exchange Offer 30 days after the commencement
thereof provided that the Company has accepted all the Notes theretofore validly
tendered in accordance with the terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Notes electing to exchange the Notes
for Exchange Notes (assuming that such Holder is not an affiliate of the Company
within the meaning of the Securities Act, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Notes and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), subject as to
an Exchanging Dealer (as defined below) to the provisions of the next paragraph
below, and without material restrictions under the securities laws of the
several states of the United States.
The Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Notes, acquired for its own account as a result of market
making activities or other trading activities, for Exchange Notes (an
"Exchanging Dealer"), is required to deliver a prospectus containing the
information set forth in Annex B hereto on the cover, in Annex C hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and in Annex D hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Notes received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Exchange Notes acquired in exchange for Notes
constituting any portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use its best efforts to keep the Exchange Offer
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, however, that (i) in the case
where such prospectus and any amendment or supplement thereto must be delivered
by an Exchanging Dealer or an Initial Purchaser, such period shall be the lesser
of 180 days and the date on which all Exchanging Dealers and the Initial
Purchasers have sold all Exchange Notes held by them (unless such period is
extended pursuant to Section 3(l) below) and (ii) the Company shall make such
prospectus and any amendment or supplement thereto, available to any
broker-dealer for use in connection with any resale of any Exchange Notes for a
period of not less than 90 days after the consummation of the Registered
Exchange Offer. The Company shall be deemed not to have used its best efforts to
keep the Exchange Offer Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of
Securities covered thereby not able to offer and sell such securities during
that period, unless such action is required by applicable law.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Notes acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange Notes pursuant to the
Registered Exchange Offer, shall issue and deliver to such Initial Purchaser
upon the written request of such Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by such Initial Purchaser, a like principal amount
of debt securities of the Company issued under the Indenture and identical in
all material respects (including the existence of restrictions on transfer under
the Securities Act and the securities laws of the several states of the United
States but excluding provisions relating to the matters described in Section 6
hereof) to the Notes (the "Private Exchange Notes") and the related guarantees
of the Subsidiary Guarantors identical in all material respects to the
guarantees of the Notes to be made by the Subsidiary Guarantors pursuant to the
Indenture. For purposes of this Agreement, the term "Private Exchange Notes"
shall include the related guarantees thereof by the Subsidiary
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Guarantors. The Notes, the Exchange Notes and the Private Exchange Notes are
herein collectively called the "Securities."
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
To the extent permitted by law, the Company shall, upon request of UBS
Securities LLC, inform the Initial Purchasers of the names and addresses of the
Holders to whom the Registered Exchange Offer is made, and the Initial
Purchasers shall have the right to, and, if requested by the Company, shall,
contact such Holders and otherwise facilitate the tender of Notes in the
Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(ii) deliver to the Trustee for cancellation all the Notes so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of the Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Notes of such Holder so accepted
for exchange.
The Indenture will provide that the Exchange Notes will not be subject to
the transfer restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that none of the
Securities will have the right to vote or consent as a class separate from one
another on any matter.
Interest on each Exchange Note and Private Exchange Note issued pursuant
to the Registered Exchange Offer and in the Private Exchange will accrue from
the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the date of original issue of the Notes.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Notes or the Exchange Notes within the meaning of the Securities Act,
(iii) such Holder is not an "affiliate," as defined in Rule 405 of the
Securities Act, of the Company or if it is an affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Notes and (v) if such Holder is a broker-dealer, that it will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a
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result of market-making activities or other trading activities and that it will
be required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes.
The Registered Exchange Offer shall not be subject to any conditions,
other than (1) that the Registered Exchange Offer, or the making of any exchange
by a Holder, does not violate applicable law or any applicable interpretation of
the staff of the Commission, (2) that no action or proceeding shall have been
instituted or threatened in any court or by or before any governmental agency or
body with respect to the Registered Exchange Offer, (3) that there shall not
have been adopted or enacted any law, statute, rule or regulation prohibiting or
limiting the Registered Exchange Offer, (4) that there shall not have been
declared by United States federal or New York state authorities a banking
moratorium, (5) that trading on the New York Stock Exchange or generally in the
United States over-the-counter market shall not have been suspended by order of
the Commission or any other governmental authority and (6) such other conditions
as may be reasonably acceptable to UBS Securities LLC which, in the Company's
judgment, would reasonably be expected to impair the ability of the Company to
proceed with the Registered Exchange Offer. The Exchange Offer shall be subject
to the further condition that no stop order, injunction or similar order shall
have been issued or obtained by the Commission or any state securities authority
suspending the effectiveness of the Exchange Offer Registration Statement and no
proceedings shall have been initiated or, to the knowledge of the Company,
threatened for that purpose.
Prior to effectiveness of the Exchange Offer Registration Statement, the
Company shall, if requested by the staff of the Commission, provide a
supplemental letter to the Commission (i) stating that the Company is
registering the Registered Exchange Offer in reliance on the position of the SEC
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988) and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and (ii) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the Exchange Notes and that, to the
best of the Company's information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the Exchange Notes in its ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes received in the Registered
Exchange Offer.
If in the opinion of counsel to the Company (which may be in-house
counsel) there is a question as to whether the Registered Exchange Offer is
permitted by applicable law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the Company to
consummate the Registered Exchange Offer. In connection therewith, the Company
hereby agrees to pursue the issuance of such a decision to the Commission staff
level, but shall not be required to take action to effect a change of stated or
recognized Commission policy. The Company hereby agrees, however, to (i)
participate in telephonic conferences with the Commission and the staff of the
Commission, (ii) deliver to the staff of the Commission an analysis prepared by
counsel to the Company (which may be in-house counsel) setting forth the legal
bases, if any, upon which such counsel has concluded that the Registered
Exchange Offer should be permitted and (iii) diligently pursue a resolution
(which need not be favorable) by the staff of the Commission of such submission.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated within
120 days of the Issue Date, (iii) any Initial Purchaser so requests with respect
to the Notes (or the Private Exchange Notes) not eligible, pursuant to
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applicable law or applicable interpretation of the staff of the Commission, to
be exchanged for Exchange Notes in the Registered Exchange Offer and held by it
following consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) is not eligible, pursuant to applicable law or
applicable interpretation of the staff of the Commission, to participate in the
Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange Offer, such
Holder does not receive freely tradeable Exchange Notes on the date of the
exchange, the Company shall take the following actions:
(a) The Company shall, at its cost, as promptly as practicable (but in no
event more than 30 days after so required or requested pursuant to this Section
2) file with the Commission and thereafter shall use its best efforts to cause
to be declared effective a registration statement (the "Shelf Registration
Statement" and, together with the Exchange Offer Registration Statement, a
"Registration Statement") on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Notes by the Holders
thereof from time to time in accordance with the methods of distribution set
forth in the Shelf Registration Statement (as determined by Holders of a
majority in aggregate principal amount of Securities eligible for inclusion in
the Shelf Registration Statement) and Rule 415 under the Securities Act
(hereinafter, the "Shelf Registration"); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to such
Holder.
(b) The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant Securities, for
a period of two years (or for such longer period if extended pursuant to Section
3(l) below) from the date of its effectiveness or such shorter period that will
terminate when (i) the Notes covered by the Shelf Registration Statement can be
sold pursuant to Rule 144 without any limitations under clauses (c), (e), (f)
and (h) of Rule 144 (or any successor rule thereof), (ii) all Securities covered
by the Shelf Registration Statement have been sold in the manner contemplated
therein, or (iii) a subsequent Shelf Registration Statement covering all of the
Securities has been declared effective; provided, however, that the Company
shall not be obligated to keep the Shelf Registration Statement effective if (i)
the Company determines, in its reasonable judgment, upon advice of counsel, as
authorized by a resolution of its Board of Directors, that the continued
effectiveness and usability of the Shelf Registration Statement would (x)
require the disclosure of material information, which the Company has a bona
fide business reason for preserving as confidential, or (y) interfere with any
financing, acquisition, corporate reorganization or other material transaction
involving the Company or any of its subsidiaries or its parent, provided that
the failure to keep the Shelf Registration Statement effective and usable for
offers and sales of Securities for such reasons shall last no longer than 45
days in any 12-month period (whereafter Additional Interest (as defined in
Section 6(a)) shall accrue and be payable), and (ii) the Company promptly
thereafter complies with the requirements of Section 3(l) hereof, if applicable.
Any such period during which the Company is excused from keeping the Shelf
Registration Statement effective and usable for offers and sales of Securities
is referred to herein as a "Suspension Period." A Suspension Period shall
commence on and include the date that the Company gives notice that the
registration statement is no longer effective or the prospectus included therein
is no longer usable for offers and sales of Securities and shall end on the
earlier to occur of (1) the date on which each seller of Securities covered by
the Shelf Registration Statement either receives the copies of the supplemented
or amended prospectus contemplated by Section 3(l) hereof or is advised in
writing by the Company that use of the prospectus may be resumed and (2) the
expiration of 45 days in any 12-month period during which one or more Suspension
Periods has been in effect. The Company shall be deemed not to have used its
best efforts to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action (other than actions which
trigger a Suspension Period) that would result in Holders of Securities covered
thereby not being able to offer and sell such securities during that period,
unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company (i) shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement, amendment or supplement, (A) to comply
in all material respects with the applicable requirements of the Securities Act
and the rules and regulations of the Commission and (B) not to contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein
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or necessary in order to make the statements therein not misleading and (ii)
shall cause any Prospectus forming part of the Shelf Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from time to
time), not to contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable,
any Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to the
filing thereof with the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to any portion
of an unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration, the Company shall use its
best efforts to reflect in each such document when so filed with the Commission,
such comments as such Initial Purchaser reasonably may propose; (ii) include the
information set forth in Annex B hereto on the cover, in Annex C hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex D hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement and
include the information set forth in Annex E hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; (iii) if requested by an
Initial Purchaser, include the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement; (iv) include within
the prospectus contained in the Exchange Offer 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 Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of Exchange Notes received by such broker-dealer in the
Registered Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of the
Initial Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in the
case of a Shelf Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement, as
selling securityholders and any other information related to such Holders as
required under the rules and regulations of the Commission.
(b) The Company shall give written notice to the Initial Purchasers, the
Holders of the Securities and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation, of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
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(v) of the happening of any event that requires the Company to make
changes in the Registration Statement or the prospectus in order that the
Registration Statement or the prospectus do not contain an untrue
statement of a material fact nor omit to state a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the prospectus, in the light of the circumstances under which they were
made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal, at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall, to the extent permitted by law, use its best
efforts to (i) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period, (ii) cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed (if required) pursuant
to Rule 424 under the Securities Act, and (iii) comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
each Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof.
(e) The Company, in the case of a Shelf Registration, shall (i) notify
each Holder of Securities, at least ten (10) business days prior to filing the
Shelf Registration Statement with the Commission, that the Shelf Registration
Statement is proposed to be filed and advising such Holders that the
distribution of Securities will be made in accordance with the method selected
by Holders of a majority in aggregate principal amount of Securities eligible
for inclusion in the Shelf Registration Statement and (ii) furnish to each
Holder of Securities included within the coverage of the Shelf Registration,
without charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference other than exhibits to such
incorporated documents unless such exhibits are specifically incorporated by
reference into such incorporated documents but excluding any portions of
exhibits for which the Company has obtained confidential treatment).
(f) The Company shall deliver to each Exchanging Dealer and each Initial
Purchaser, and to any other Holder who so requests, without charge, at least one
copy of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if any
Initial Purchaser or any such Holder requests, all exhibits thereto (including
those, if any, incorporated by reference other then exhibits to such
incorporated documents unless such exhibits are specifically incorporated by
reference into such incorporated documents but excluding any portions of
exhibits for which the Company has obtained confidential treatment).
(g) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto, included in
the Shelf Registration.
(h) The Company shall deliver to each Initial Purchaser, any Exchanging
Dealer, any Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by any Initial
Purchaser, if necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Notes covered by the
prospectus, or any amendment or supplement thereto, included in the Registered
Exchange Offer.
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(i) The Company shall (i) in the case of an Exchange Offer, furnish to
one firm of legal counsel for the Initial Purchasers and (ii) in the case of a
Shelf Registration, furnish to one firm of legal counsel for the Holders of
Securities covered thereby copies of any request received by or on behalf of the
Company from the Commission or any state securities authority for amendments or
supplements to the relevant Registration Statement and Prospectus or for
additional information.
(j) Prior to any public offering of the Securities pursuant to any
Registration Statement, the Company shall register or qualify or cooperate with
the Holders of the Securities included therein and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification or pre-emption of such registration or
qualification by federal law) of the Securities for offer and sale under the
securities or "blue sky" laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action that would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
(k) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
(l) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company is
required to maintain an effective Registration Statement, the Company shall
promptly prepare and file a post-effective amendment to the Registration
Statement or supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Notes or purchasers
of Securities, the prospectus will not contain an 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. If the Company notifies the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (v) of Section 3(b)
above to suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchasers, the Holders of the
Securities and any such Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of days
from and including the date of the giving of such notice to and including the
date when the Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(l).
(m) The Company shall (i) a reasonable time prior to the filing of any
Exchange Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Initial
Purchasers, and make such changes in any such document prior to the filing
thereof as UBS Securities LLC or one firm of legal counsel to the Initial
Purchasers may reasonably request, (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such document to
UBS Securities LLC, one firm of legal counsel appointed by UBS Securities LLC to
represent the Holders participating in such Shelf Registration, the managing
underwriters of an underwritten offering of Registrable Securities, if any, and
their counsel, and make such changes in any such document prior to the filing
thereof as UBS Securities, Inc., such one firm of legal counsel for the Holders,
such managing underwriters or their counsel may reasonably request, and (iii)
cause the representatives of the Company to be available for discussion of such
document as shall be reasonably requested by UBS Securities LLC, one firm of
legal counsel to the Holders, the managing underwriters and their counsel. The
Company shall not at any time make any filing of any such document of which UBS
Securities LLC, one firm of legal counsel to the Holders, the managing
underwriters and their counsel shall not have previously been advised and
furnished a copy or to which UBS Securities LLC, one firm of legal counsel to
the Holders, the
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managing underwriters and their counsel shall reasonably object; provided,
however, that the provisions of this paragraph (m) shall not apply to any
document filed by the Company pursuant to the Exchange Act which is incorporated
or deemed to be incorporated by reference in any Registration Statement or
Prospectus.
(n) In the case of a Shelf Registration and if requested by the managing
underwriters, if any, or by Holders of a majority in aggregate principal amount
of the Securities eligible for inclusion in the Shelf Registration Statement,
(i) as soon as practicable incorporate in a prospectus supplement or
post-effective amendment such information or revisions to information therein
relating to the underwriters or selling Holders as the managing underwriters, if
any, or such Holders or their counsel reasonably request to be included or made
therein, (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, and (iii) if required, supplement or make amendments
to such Shelf Registration Statement.
(o) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, and provide the
applicable trustee with printed certificates for the Notes the Exchange Notes or
the Private Exchange Notes, as, the case may be, in a form eligible for deposit
with The Depository Trust Company.
(p) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Registered
Exchange Offer or the Shelf Registration and will make generally available to
its security holders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the Registration Statement, which statement shall cover such 12-month period.
(q) The Company shall cause the indenture to be qualified under the Trust
Indenture Act of 1939, as amended, in a timely manner and containing such
changes, if any, as shall be necessary for such qualification. In the event that
such qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(r) The Company may require each Holder of Securities to be sold pursuant
to the Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of the Securities as the Company may
from time to time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the Securities of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(s) In the case of any Shelf Registration, if the Securities are to be
sold in an underwritten offering, the Company shall, if requested by Holders of
a majority in aggregate principal amount of Securities eligible for inclusion in
the Shelf Registration Statement, enter into an underwriting agreement in
customary form and cooperate to take such other actions as may be reasonably
requested in connection therewith.
(t) In the case of any Shelf Registration, the Company shall (i) make
reasonably available for inspection by the Holders of the Securities, any
underwriter participating in any disposition pursuant to the Shelf Registration
Statement and any attorney, accountant or other agent retained by the Holders of
the Securities or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by the Holders of the Securities or
any such underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons to conduct a reasonable investigation within the meaning of Section
11 of the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial Purchasers
by the Initial Purchasers and on behalf of the other parties by one counsel
designated by and on behalf of such other parties as described in Section 4
hereof.
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(u) In the case of any Shelf Registration, the Company, if requested by
any Holder of Securities covered thereby, shall cause (i) its counsel to deliver
an opinion and updates thereof relating to the Securities in customary form and
subject to customary exceptions addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement (it being agreed that the
matters to be covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company and its subsidiaries incorporated
in the United States; the qualification of the Company and such subsidiaries to
transact business as foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to in Section 3(s)
hereof; the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the applicable Securities; the absence of
material legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be obtained in
connection with the Shelf Registration Statement, the offering and sale of the
applicable Securities, or any agreement of the type referred to in Section 3(s)
hereof, the compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act, respectively;
and, as of the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto, as the
case may be, a statement of such counsel that it has no reason to believe that
such Shelf Registration Statement or the prospectus included therein, as then
amended or supplemented, or any documents incorporated by reference therein
contained an untrue statement of a material fact or omitted to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed with the
Commission under the Exchange Act)), (ii) its officers to execute and deliver
all customary documents and certificates and updates thereof requested by any
underwriters of the applicable Securities, and (iii) its independent public
accountants and the independent public accountants with respect to any other
entity for which financial information is provided in the Shelf Registration
Statement to provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated by Statement of Auditing Standards No. 72.
(v) In the case of the Registered Exchange Offer, if requested by any
Initial Purchaser or any known Participating Broker-Dealer, the Company shall
cause (i) its counsel (which may be in-house counsel) to deliver to such Initial
Purchaser or such Participating Broker-Dealer a signed opinion in the form set
forth in Sections 8(d) and 8(e) of the Purchase Agreement with such changes as
are customary in connection with the preparation of a Registration Statement and
(ii) its independent public accountants and the independent public accountants
with respect to any other entity for which financial information is provided in
the Registration Statement to deliver to such Initial Purchaser or such
Participating Broker-Dealer a comfort letter, in customary form, meeting the
requirements as to the substance thereof as set forth in Section 8(g) of the
Purchase Agreement, with appropriate date changes.
(w) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Notes by Holders to the Company (or to such
other person or entity as directed by the Company) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Company shall ▇▇▇▇,
or cause to be marked, on the Notes so exchanged that such Notes are being
canceled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; in no event shall the Notes be marked as paid or otherwise
satisfied.
(x) The Company will use its best efforts to either (i) confirm that the
ratings obtained for the Notes prior to the initial sale of such Notes will
apply to the Securities covered by a Registration Statement or (ii) cause the
Securities covered by a Registration Statement to be rated with the appropriate
rating agencies, if so requested by Holders of a majority in aggregate principal
amount of Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(y) In the event that any broker-dealer registered under the Exchange Act
shall underwrite any Securities or participate as a member of an underwriting
syndicate or selling group or "participate in the
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distribution" (within the meaning of the Conduct Rules (the "Rules") of the
National Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirements of the Rules, including,
without limitation, by (i) if such Rules, including Rule 2720 thereto, shall so
require, engaging a "qualified independent underwriter" (as defined in Rule
2720) to participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such information
to such broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules.
(z) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1
through 3 hereof (including the reasonable fees and expenses, if any, of ▇▇▇▇▇▇▇
& ▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers, incurred in connection with
the Registered Exchange Offer), whether or not any Registration Statement is
filed or becomes effective, and, in the event of a Shelf Registration, shall
bear or reimburse the Holders of the Securities covered thereby for the
reasonable fees and disbursements of one firm of counsel designated by the
Holders of a majority in principal amount of the Securities covered thereby to
act as counsel for the Holders of the Securities in connection therewith. In
addition, the Company shall, or shall cause the Subsidiary Guarantors to, bear
all fees and expenses of the Subsidiary Guarantors incurred in connection with
the performance of the obligations of the Subsidiary Guarantors under this
Agreement. Except as provided in the preceding sentence and in Section 5 hereof,
each Holder (including the Initial Purchasers) shall pay all underwriting
discounts and commissions, transfer taxes and fees and expenses of counsel, if
any, relating to the sale or disposition of such Holders' Securities pursuant to
the Exchange Offer Registration Statement or the Shelf Registration Statement.
5. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Holder of the Securities, any Participating Broker-Dealer and each person,
if any, who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "Indemnified Parties") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of any prospectus, in the
light of the circumstances under which they are made) not misleading, and shall
reimburse, as incurred, the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action in respect thereto; provided,
however, that (i) the Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Holder or
Participating Broker-Dealer from whom the person asserting such losses, claims,
damages or liabilities purchased the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered by such
Holder or
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Participating Broker-Dealer under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of such Holder
or Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at, or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity agreement will be
in addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company also shall indemnify underwriters, selling
brokers, dealer-managers and similar securities industry professionals
participating in the distribution (as described in such Registration Statement),
their officers and directors and each person who controls such persons within
the meaning of the Securities Act or the Exchange Act to the same extent as
provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of any
prospectus, in the light of the circumstances under which they are made) not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company or any such
controlling person for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof;
provided, however, that no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Securities pursuant to such Registration Statement. This indemnity agreement
will be in addition to any liability which such Holder may otherwise have to the
Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above to the extent that the
indemnifying party is not materially prejudiced thereby. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party will not
be liable to such indemnified party under this Section 5 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof. Notwithstanding
the election of the indemnifying party to assume defense of such action or
proceeding, the indemnified party shall have the right, at its own expense, to
employ one additional firm as separate counsel and to participate in the defense
of the action or proceeding; provided, that the indemnifying party shall pay the
reasonable fees and expenses of such separate counsel reasonably satisfactory to
the indemnifying party if (i) the indemnifying party shall have failed to employ
counsel to represent the indemnified party in a reasonably timely manner or (ii)
the defendants in any such action or proceeding include both the indemnified
party and the indemnifying party and counsel to the indemnified party shall have
concluded and notified the indemnifying party that in its reasonable judgment
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them.
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In no event shall the indemnifying parties be liable for the fees and expenses
of more than one counsel (in addition to any local counsel) (which counsels
shall be selected by UBS Securities LLC or, in the event that UBS Securities LLC
is not an indemnified party, by a majority in interest of the indemnified
parties) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which such indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) is for money damages only, (ii) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action, and (iii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 5 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Notes, pursuant to the
Registered Exchange Offer, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or emissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. 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 Company on the one hand or
such Holder or such other indemnified person, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holders have 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. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale of
the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iii) below a "Registration Default"):
(i) If by October 27, 1997, neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement has been filed with the
Commission;
(ii) If by January 23, 1998, neither the Registered Exchange Offer
is consummated nor, if required in lieu thereof, the Shelf Registration
Statement is declared effective by the Commission; or
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(iii) If after either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective (other than during
a Suspension Period with respect to a Shelf Registration Statement) (A)
such Registration Statement thereafter ceases to be effective (unless all
Securities have been previously exchanged or the obligation to maintain
the effectiveness of such Registration Statement has expired); or (B) such
Registration Statement or the related prospectus ceases to be usable
(except as permitted in paragraph (b)) in connection with resales of
Transfer Restricted Notes during the periods specified herein because
either (1) any event occurs as a result of which the related prospectus
forming part of such Registration Statement would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or (2) it shall be necessary to amend
such Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest shall accrue on the Notes over and above the interest set
forth in the title of the Notes from and including the date on which any such
Registration Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.50% per annum.
(b) A Registration Default referred to in Section 6(a)(iii)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs to but excluding the date on which such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i), (ii) or
(iii) of Section 6(a) above will be payable in cash on the regular interest
payment dates with respect to the Notes. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate by the
principal amount of the 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 the denominator of which is 360.
(d) "Transfer Restricted Notes" means each Security until (i) the date on
which such Security has been exchanged by a person other than a broker-dealer
for a freely transferrable Exchange Note in the Registered Exchange Offer, (ii)
following the exchange by a broker-dealer in the Registered Exchange Offer of a
Security for an Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Security is distributed to
the public pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
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 Transfer Restricted Notes,
make publicly available other information so long as necessary to permit sales
of Transfer Restricted Notes pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder of Transfer
Restricted Notes may reasonably request, all to the extent required from time to
time to enable such Holder to sell Transfer Restricted Notes without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144
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and 144A (including the requirements of Rule 144A(d)(4)). The Company will
provide a copy of this Agreement to prospective purchasers of Notes identified
to the Company by the Initial Purchasers upon request. Upon the request of any
Holder of Transfer Restricted Notes, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations. If any of the Transfer Restricted Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering ("Managing Underwriters") will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Notes to be included in such offering, subject to the approval of such Managing
Underwriters by the Company which shall not be unreasonably withheld.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company;
(2) if to the Initial Purchasers, to:
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(3) if to the Company, to:
Giant Industries, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and the Initial Purchasers and their respective successors and assigns,
including, without limitation and without the need for an express assignment,
subsequent holders of the Securities.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(j) Guarantees. Each of the Guarantors agrees to take all such actions
necessary to include its guarantee of the Notes or the Exchange Notes in any
Exchange Offer Registration Statement or Shelf Registration Statement to the
extent required under the Securities Act and to take such other action as may be
required in order for the Company to comply with its obligations hereunder.
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If the foregoing is in accordance with, your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the several Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
GIANT INDUSTRIES, INC.
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
GIANT INDUSTRIES ARIZONA, INC.
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
GIANT EXPLORATION & PRODUCTION COMPANY
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
PHOENIX FUEL CO., INC.
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
SAN ▇▇▇▇ REFINING COMPANY
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
GIANT MID-CONTINENT, INC.
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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CINIZA PRODUCTION COMPANY
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
GIANT STOP-N-GO OF NEW MEXICO, INC.
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
GIANT FOUR CORNERS, INC.
By: /s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
UBS SECURITIES LLC
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
BANCAMERICA SECURITIES, INC.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: UBS Securities LLC
By /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
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ANNEX A
Giant Industries Arizona, Inc. (an Arizona corporation)
Giant Exploration & Production Company (a Texas corporation)
Phoenix Fuel Co., Inc. (an Arizona corporation)
San ▇▇▇▇ Refining Company (a New Mexico corporation)
Giant Mid-Continent, Inc. (an Arizona corporation)
Ciniza Production Company (a New Mexico corporation)
Giant Stop-N-Go of New Mexico, Inc. (a New Mexico corporation)
Giant Four Corners, Inc. (an Arizona corporation)
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ANNEX B
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must agree that it will deliver a prospectus in
connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Notes received in exchange for Notes where such Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
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ANNEX C
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
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ANNEX D
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must agree that it will deliver a prospectus in
connection with any resale of such Exchange Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Existing
Notes where such Existing Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date, it will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until , 199 , all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.*
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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* In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
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ANNEX E
// CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it agrees that it will
deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so agreeing and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
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