Exhibit 12
FINAL
AMENDED AND RESTATED
REGISTRATION AGREEMENT
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THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this "Agreement") is made
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as of August 14, 2000, by and among (i) Synagro Technologies, Inc., a Delaware
corporation (together with its successors and permitted assigns, the "Company"),
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(ii) GTCR Fund VII, L.P., a Delaware limited partnership ("GTCR Fund VII"), GTCR
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Co-Invest, L.P., a Delaware limited partnership ("GTCR Co-Invest"), and GTCR
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Capital Partners, L.P., a Delaware limited partnership ("GTCR Capital") and
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(iii) the TCW/Crescent Lenders (as defined herein). Each of GTCR Fund VII,
GTCR Co-Invest, GTCR Capital and the TCW/Crescent Lenders are sometimes
individually referred to as an "Investor" and collectively as the "Investors".
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WHEREAS, the Company, GTCR Fund VII and GTCR Capital are parties to a
Registration Agreement dated as of January 27, 2000 (the "Original Registration
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Agreement");
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WHEREAS, the Company and the Investors have agreed to enter into this
Agreement in order, among other things, to: (a) amend and restate the Original
Registration Agreement in its entirety and (b) join GTCR Co-Invest and the
TCW/Crescent Lenders as parties hereto; and
WHEREAS, the Company, GTCR Fund VII, GTCR Co-Invest and the TCW/Crescent
Lenders are parties to an Amended and Restated Purchase Agreement of even date
herewith (the "Purchase Agreement"). The Company, GTCR Capital and the
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TCW/Crescent Lenders are parties to an Amended and Restated Senior Subordinated
Loan Agreement of even date herewith, as amended, supplemented or modified from
time to time (the "Loan Agreement"). In connection with the transaction
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contemplated by the Purchase Agreement and the Loan Agreement, the Company will
issue to the Investors Warrants (as defined herein) to purchase shares of the
Company's Preferred Stock. In order to induce GTCR Fund VII, GTCR Co-Invest and
the TCW/Crescent Lenders to enter into the Purchase Agreement and GTCR Capital
and the TCW/Crescent Lenders to enter into the Loan Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closings under
the Purchase Agreement and the Loan Agreement. Unless otherwise provided in
this Agreement, capitalized terms used herein shall have the meanings set forth
in Section 8 hereof.
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NOW, THEREFORE, the parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. Subject to the restrictions set forth
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below, the holders of a majority of the Registrable Securities may request
registration under the Securities Act of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration ("Long-Form
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Registrations"), or on Form S-2 or S-3 (including pursuant to Rule 415 under the
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Securities Act) or any similar short-form registration ("Short-Form
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Registrations"), if available. All
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registrations requested pursuant to this Section 1(a) are referred to herein as
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"Demand Registrations." Each request for a Demand Registration shall specify the
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approximate number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) Long-Form Registrations. The holders of Registrable Securities
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shall be entitled to request two (2) Long-Form Registrations plus one (1)
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additional Long-Form Registration for each additional $25 million invested in
the Company (either on one or multiple occasions) through the purchase of
Preferred Stock pursuant to the Purchase Agreement, in which the Company shall
pay all Registration Expenses (as defined in Section 5). All Long-Form
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Registrations shall be underwritten registrations. A registration shall not
count as one of the permitted Long-Form Registrations until it has become
effective, and the last Long-Form Registration shall not count as one of the
permitted Long-Form Registrations unless the holders of Registrable Securities
are able to register and sell at least 90% of the Registrable Securities
requested to be included in such registration; provided that in any event the
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Company shall pay all Registration Expenses in connection with any Long-Form
Registration whether or not it has become effective and whether or not such
registration has counted as one of the permitted Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to Section 1(b), the holders of Registrable
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Securities shall be entitled to request an unlimited number of Short-Form
Registrations in which the Company shall pay all Registration Expenses;
provided, however, that all Short-Form Registrations shall be for a minimum of
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$10 million of Registrable Securities, based on the anticipated per share price
range for such offering. Demand Registrations shall be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. The Company
shall use its best efforts to make Short-Form Registrations on Form S-3
available for the sale of Registrable Securities. If the Company, pursuant to
the request of the holder(s) of a majority of Registrable Securities, is
qualified to and has filed with the Securities Exchange Commission a
registration statement under the Securities Act on Form S-3 pursuant to Rule 415
under the Securities Act (the "Required Registration"), then the Company
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shall use its best efforts to cause the Required Registration to be declared
effective under the Securities Act as soon as practicable after filing, and,
once effective, the Company shall cause such Required Registration to remain
effective for a period ending on the earlier of (i) the date on which all
Registrable Securities have been sold pursuant to the Required Registration, or
(ii) the date as of which the holder(s) of Registrable Securities (assuming such
holder(s) are affiliates of the Company) are able to sell all of the Registrable
Securities then held be them within a ninety-day period in compliance with Rule
144 under the Securities Act.
(d) Priority on Demand Registrations. The Company shall not include
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in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company
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in writing that, in their opinion, the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities to be
included in such registration, then the Company shall include in such
registration, prior to the inclusion of any securities which are not Registrable
Securities, the number of Registrable Securities requested to be included which,
in the opinion of such underwriters, can be sold in an orderly manner within the
price range of such offering, pro rata among the respective holders thereof on
the basis of the amount of Registrable Securities owned by each such holder.
(e) Restrictions on Long-Form Registrations.
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(i) The Company shall not be obligated to effect any Long-Form
Registration within 90 days after the effective date of a previous Long-
Form Registration or a previous registration in which the holders of
Registrable Securities were given piggyback rights pursuant to Section 2
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and in which there was no reduction in the number of Registrable Securities
requested to be included.
(ii) The Company may postpone for up to 120 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's Board of Directors determines that such Demand Registration would
reasonably be expected to have a material adverse effect on any proposal or
plan by the Company or any of its Subsidiaries to acquire financing, engage
in any acquisition of assets (other than in the ordinary course of
business), or engage in any merger, consolidation, tender offer,
reorganization, or similar transaction; provided that, in such event, the
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holders of Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and the Company
shall pay all Registration Expenses in connection with such registration.
The Company may delay a Demand Registration under this Section 1(e)(ii)
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only once in any twelve-month period and two times in the aggregate.
(f) Selection of Underwriters. In the case of an underwritten
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offering, the Company shall have the right to select the investment banker(s)
and manager(s) to administer the offering, subject to the approval of the
holders of a majority of the Registrable Securities included in such Demand
Registration, which approval shall not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this Agreement,
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the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities, options, or
rights convertible or exchangeable into or exercisable for such securities,
without the prior written consent of the holders of a majority of the
Registrable Securities.
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2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register
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any of its securities under the Securities Act (other than (i) pursuant to a
Demand Registration, to which Section 1 is applicable or (ii) in connection with
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registrations on Form ▇-▇, ▇-▇ or any successor or similar forms) and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company shall give prompt written
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notice (and in any event within three business days after its receipt of notice
of any exercise of demand registration rights other than under this Agreement)
to all holders of Registrable Securities of its intention to effect such a
registration and shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 20 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration
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is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that, in their opinion, the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the Company, then the Company shall include in such
registration (i) first, the securities the Company proposes to sell and (ii)
second, all other securities (including the Registrable Securities) requested to
be included in such registration, pro rata among the holders of such securities
on the basis of the number of shares owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities other than holders of Registrable Securities (it being understood
that secondary registrations on behalf of holders of Registrable Securities are
addressed in Section 1 above rather than this Section 2(d)), and the managing
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underwriters advise the Company in writing that, in their opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities to be
included in such registration, then the Company shall include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration and (ii) second, all other securities
(including Registrable Securities) requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares owned by each such holder.
(e) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
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not been withdrawn or abandoned, then, unless such previous registration is a
Required Registration, the Company shall not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether
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on its own behalf or at the request of any holder or holders of such securities,
until a period of at least 180 days has elapsed from the effective date of such
previous registration.
3. Other Sales.
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The Company (i) shall not effect any public sale or distribution of
its equity securities, or any securities, options, or rights convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) to the extent not
inconsistent with applicable law, shall cause each holder of its equity
securities, or any securities convertible into or exchangeable or exercisable
for equity securities, in an amount of more than 5% of the then-outstanding
shares of Common Stock (as adjusted for stock splits, stock dividends,
recapitalizations, and similar transactions), purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use commercially reasonable efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) prepare and, within 60 days after the end of the period within
which requests for registration may be given to the Company, file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and use commercially reasonable efforts to cause such
registration statement to become effective (provided that, before filing a
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registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to the counsel selected by the holders of a majority
of the Registrable Securities covered by such registration statement copies of
all such documents proposed to be filed, which documents shall be subject to the
review and comment of such counsel);
(b) notify in writing each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days (or, if such registration statement relates to an
underwritten offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection with
sales of Registrable Securities by an underwriter or dealer) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities
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covered by such registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus and any supplemental prospectus), and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
of Registrable Securities to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller of Registrable Securities
(provided that the Company shall not be required to (i) qualify generally to do
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business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 4(d), (ii) subject itself to taxation in any such
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jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);
(e) promptly notify in writing each seller of such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
and, at the request of the holders of a majority of the Registrable Securities
covered by such registration statement, the Company shall promptly prepare and
furnish to each such seller a reasonable number of copies of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate
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the disposition of Registrable Securities (including effecting a stock split or
a combination of shares);
(i) make available for inspection by any underwriter participating in
any disposition pursuant to such registration statement, and any attorney,
accountant, or other agent retained by any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees, and independent accountants
to supply all information reasonably requested by any such underwriter,
attorney, accountant, or agent in connection with such registration statement
and assist and, at the request of any participating underwriter, use
commercially reasonable efforts to cause such officers or directors to
participate in presentations to prospective purchasers;
(j) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any equity securities included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) use commercially reasonable efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(n) obtain one or more cold comfort letters, dated the effective date
of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), from the Company's independent public accountants in
customary form and covering such matters of the type customarily covered by cold
comfort letters as the holders of a majority of the Registrable Securities being
sold in such registered offering reasonably request (provided that such
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Registrable Securities constitute at least 10% of the securities covered by such
registration statement), which letter or letters shall be addressed to the
underwriters; and
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(o) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (or, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature, which opinion and other documents shall be addressed to the
underwriters and the holders of such Registrable Securities.
5. Registration Expenses.
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(a) Subject to Section 5(b) below, all expenses incident to the
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Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, travel expenses, filing expenses, messenger
and delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company, and fees and disbursements of all
independent certified public accountants, underwriters including, if necessary,
a "qualified independent underwriter" within the meaning of the rules of the
National Association of Securities Dealers, Inc. (in each case, excluding
discounts and commissions), and other Persons retained by the Company or by
holders of Registrable Securities or their affiliates on behalf of the Company
(all such expenses being herein called "Registration Expenses"), shall be borne
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as provided in this Agreement, except that the Company shall, in any event, pay
its internal expenses (including all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance, and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system (or any successor or similar system).
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless, to the fullest
extent permitted by law, each holder of Registrable Securities, its officers,
directors, agents, and employees, and each Person who controls such holder
(within the meaning of the Securities Act) against all
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losses, claims, damages, liabilities, and expenses (or actions or proceedings,
whether commenced or threatened, in respect thereof), whether joint and several
or several, together with reasonable costs and expenses (including reasonable
attorney's fees) to which any such indemnified party may become subject under
the Securities Act or otherwise (collectively, "Losses") caused by, resulting
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from, arising out of, based upon, or relating to (i) any untrue or alleged
untrue statement of material fact contained in (A) any registration statement,
prospectus or preliminary prospectus, or any amendment thereof or supplement
thereto covering the sale of Registrable Securities or (B) any application or
other document or communication (in this Section 6, collectively called an
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"application") executed by or on behalf of the Company or based upon written
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information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify any securities covered by such registration under the "blue
sky" or securities laws thereof or (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such holder and each such
director, officer, and controlling Person for any legal or any other expenses
incurred by them in connection with investigating or defending any such Losses;
provided that the Company shall not be liable in any such case to the extent
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that any such Losses result from, arise out of, are based upon, or relate to an
untrue statement or alleged untrue statement, or omission or alleged omission,
made in such registration statement, any such prospectus, or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon, and in conformity with, written information prepared and
furnished in writing to the Company by such holder expressly for use therein or
by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors, and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, shall indemnify and hold
harmless the other holders of Registrable Securities and the Company, and their
respective officers, directors, agents, and employees, and each other Person who
controls the Company (within the meaning of the Securities Act) against any
Losses caused by, resulting from, arising out of, based upon, or relating to (i)
any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus, or any amendment
thereof or supplement thereto or in any application, or (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application in reliance upon and in conformity with written information
prepared and furnished to the Company by such holder expressly for use therein,
and such holder will reimburse the Company and each such other indemnified party
for any legal or any other expenses incurred by them in connection with
investigating or defending any such Losses; provided that the obligation to
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indemnify will be
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individual, not joint and several, for each holder and shall be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
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shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
then the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its written consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract, and will remain in full
force and effect regardless of any investigation made or omitted by or on behalf
of the indemnified party or any officer, director, or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in this Section 6 is
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unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect to any Losses referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
sellers of Registrable Securities and any other sellers participating in the
registration statement on the other hand or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, then in such proportion as
is appropriate to reflect not only the relative fault referred to in clause (i)
above but also the relative benefit of the Company on the one hand and of the
sellers of Registrable Securities and any other sellers participating in the
registration statement on the other in connection with the registration
statement on the other in connection with the statement or omissions which
resulted in such Losses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) to the Company bear
to the total net proceeds from the offering (before deducting expenses) to the
sellers of Registrable Securities and any other sellers participating in the
registration statement. The relative fault of the Company on the one hand and of
the sellers of Registrable Securities and any other sellers participating in the
registration statement on the other shall be determined by reference to, among
other things, whether
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the untrue or alleged omission to state a material fact relates to information
supplied by the Company or by the sellers of Registrable Securities or other
sellers participating in the registration statement and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission.
(f) The Company and the sellers of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this Section 6
---------
were determined by pro rata allocation (even if the sellers of Registrable
Securities were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in Section 6(e) above. The amount paid or payable by an indemnified
-----------
party as a result of the Losses referred to in Section 6(e) above shall be
-----------
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no seller of Registrable Securities shall be
---------
required to contribute pursuant to this Section 6 any amount in excess of the
---------
result of (i) the net proceeds received by such seller from the sale of
Registrable Securities covered by the registration statement filed pursuant
hereto minus (ii) any amounts paid pursuant to Section 6(b) above. 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.
7. Participation in Underwritten Registrations.
-------------------------------------------
(a) No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including pursuant to
the terms of any over-allotment or "green shoe" option requested by the managing
underwriter(s), provided that no holder of Registrable Securities will be
-------- ----
required to sell more than the number of Registrable Securities that such holder
has requested the Company to include in any registration) 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; provided that no holder of Registrable Securities
-------- ----
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in Section 6 hereof.
---------
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 4(e) above, such Person will immediately
-----------
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by Section 4(e). In the event
-----------
the Company shall give any such notice, the applicable time period mentioned in
Section 4(b) during which a Registration Statement is to remain effective shall
-----------
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to this Section 7(b) to and including the
-----------
date when each seller of a Registrable Security covered by such registration
statement
-11-
shall have received the copies of the supplemented or amended prospectus
contemplated by Section 4(e).
-----------
8. Definitions.
-----------
"Common Stock" means any class of the Company's common stock.
------------
"Person" means and includes natural persons, corporations, limited
------
partnerships, limited liability companies, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivision thereof.
"Preferred Stock" means the Series C Preferred, the Series D Preferred
---------------
(including that acquired upon conversion of the Series C Preferred), the Series
E Preferred and all subsequent series of convertible preferred stock issued or
to be issued in connection with the Purchase Agreement.
"Registrable Securities" means (i) any Common Stock issued or issuable
----------------------
upon conversion of the Preferred Stock (x) issued pursuant to the Purchase
Agreement or (y) issued or issuable upon exercise of the Warrants (whether
issued before, on, or after the Closing Date) and (ii) any other shares of
Common Stock issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) above by way of a stock dividend or stock
split or in connection with an exchange or combination of shares,
recapitalization, merger, consolidation, or other reorganization. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when they (i) have been distributed to the public pursuant to an
offering registered under the Securities Act or sold to the public through a
broker, dealer, or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in force), (ii) unless the respective Investor
otherwise elects, have been distributed to the limited partners of any of the
Investors, (iii) have been effectively registered under a registration statement
including, without limitation, a registration statement on Form S-8 (or any
successor form), or (iv) have been repurchased by the Company. For purposes of
this Agreement, a Person shall be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire such Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected; provided that this sentence shall not apply to shares of the common
-------- ----
equity securities of the Company issuable upon the exercise of unvested options
originally issued to employees or former employees of the Company.
"Securities Act" means the Securities Act of 1933, as amended, or any
--------------
successor federal law then in force, together with all rules and regulations
promulgated thereunder.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
-----------------------
as amended, or any successor federal law then in force, together with all rules
and regulations promulgated thereunder.
-12-
"Series C Preferred" means the Corporation's Series C Convertible
------------------
Preferred Stock, par value $.002 per share.
"Series D Preferred" means the Corporation's Series D Convertible
------------------
Preferred Stock, par value $.002 per share.
"Series E Preferred" means the Corporation's Series E Convertible
------------------
Preferred Stock, par value $.002 per share.
"TCW/Crescent Lenders" means, collectively, (i) TCW/Crescent Mezzanine
--------------------
Partners II, L.P., a Delaware limited partnership, (ii) TCW/Crescent Mezzanine
Trust II, a Delaware business trust, (iii) TCW Leveraged Income Trust, L.P., a
Delaware limited partnership, (iv) TCW Leveraged Income Trust II, L.P., a
Delaware limited partnership and (v) TCW Leveraged Income Trust IV, L.P., a
Delaware limited partnership.
"Warrants" means the warrants to purchase shares of Preferred Stock
--------
issued by the Company to GTCR Fund VII, GTCR Co-Invest and the TCW/Crescent
Lenders prior to the date hereof, on the date hereof or at any time in the
future.
Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Purchase Agreement.
9. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company shall not hereafter
--------------------------
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall
--------------------------------------------
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration (including
effecting a stock split or a combination of shares).
(c) Remedies. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement. Nothing contained in this Agreement shall be construed to confer upon
any Person who is not a signatory hereto any rights or benefits, whether as a
third-party beneficiary or otherwise.
-13-
(d) Amendments and Waivers. Except as otherwise provided herein, no
----------------------
modification, amendment, or waiver of any provision of this Agreement shall be
effective against the Company or the holders of Registrable Securities unless
such modification, amendment, or waiver is approved in writing by the Company
and the holders of at least a majority of the Registrable Securities then in
existence; provided that no such amendment or modification that would materially
-------- ----
and adversely affect holders of one class or group of Registrable Securities in
a manner different than holders of any other class or group of Registrable
Securities, shall be effective against the holders of such class or group of
Registrable Securities without the prior written consent of holders of at least
a majority of Registrable Securities of such class or group materially and
adversely affected thereby. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant, duty, agreement,
or condition.
(e) Successors and Assigns. All covenants and agreements in this
----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. Notwithstanding
the foregoing, in order to obtain the benefit of this Agreement, any subsequent
holder of Registrable Securities must execute a counterpart to this Agreement,
thereby agreeing to be bound the terms hereof.
(f) Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a substantive part of
this Agreement. Whenever required by the context, any pronoun used in this
Agreement shall include the corresponding masculine, feminine, or neuter forms,
and the singular form of nouns, pronouns, and verbs shall include the plural and
vice versa. The use of the word "including" in this Agreement shall be, in each
case, by way of example and without limitation. The use of the words "or,"
"either," and "any" shall not be exclusive. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof.
(i) Governing Law. The corporate law of the State of Delaware shall
-------------
govern all issues and questions concerning the relative rights of the Company
and its stockholders. All other
-14-
issues and questions concerning the construction, validity, interpretation, and
enforcement of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of
Illinois, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Illinois or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Illinois.
(j) Notices. All notices, demands, or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands, and other
communications shall be sent to each Investor at the addresses indicated on the
Schedule of Holders and to the Company at the address of its corporate
headquarters or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to the sending
party.
(k) Entire Agreement. This Agreement, those documents expressly
----------------
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(l) No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting to this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
(m) Amendment and Restatement. Effective as of the date hereof, the
-------------------------
Original Registration Agreement is hereby amended and restated in its entirety
and, from and after the date hereof, all references herein to "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
Original Registration Agreement, as amended hereby.
* * * * *
-15-
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Agreement as of the date first written above.
SYNAGRO TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Its: Chairman / CEO
--------------------------------------
GTCR FUND VII, L.P.
By: GTCR Partners VII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR CO-INVEST, L.P.
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR CAPITAL PARTNERS, L.P.
By: GTCR Mezzanine Partners, L.P.
Its: General Partner
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
SIGNATURE PAGE TO THE AMENDED AND RESTATED REGISTRATION AGREEMENT
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.P.
as general partner or managing owner
By: TCW/Crescent Mezzanine, L.L.C.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Managing Director
------------------------------------------
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Limited
as general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: Managing Director
------------------------------------------
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Managing Director
------------------------------------------
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (▇▇▇▇ ▇▇), L.P.
as general partner
By: TCW Advisors (Bermuda), Ltd.,
as general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: Managing Director
------------------------------------------
By: TCW Investment Management Company,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Managing Director
------------------------------------------
SIGNATURE PAGE TO THE AMENDED AND RESTATED REGISTRATION AGREEMENT
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Managing Director
--------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Title: Managing Director
--------------------------------------------
By: TCW (▇▇▇▇ ▇▇), L.L.C., as General Partner
By: TCW Asset Management Company,
as its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Managing Director
--------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Title: Managing Director
--------------------------------------------
SIGNATURE PAGE TO THE AMENDED AND RESTATED REGISTRATION AGREEMENT
SCHEDULE OF HOLDERS
-------------------
GTCR FUND VII, L.P.
GTCR CO-INVEST, L.P.
GTCR CAPITAL PARTNERS, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
TCW LEVERAGED INCOME TRUST, L.P.
TCW LEVERAGED INCOME TRUST II, L.P.
TCW LEVERAGED INCOME TRUST IV, L.P.
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇