Exhibit 10.17
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of January 26, 2001
Among
MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P. and
MERISTAR HOSPITALITY FINANCE CORP.
as Issuers
MERISTAR HOSPITALITY CORPORATION and
Certain Subsidiaries of MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P.
as Guarantors
and
Certain Other Parties
as Investors
================================================================================
Table of Contents
Page
1. Definitions......................................................... 1
2. Securities Subject to This Agreement................................ 4
3. Registered Exchange Offer........................................... 4
4. Shelf Registration.................................................. 6
5. Liquidated Damages.................................................. 7
6. Registration Procedures............................................. 7
7. Registration Expenses............................................... 15
8. Indemnification and Contribution.................................... 16
9. Rule 144A........................................................... 19
10. Participation in Underwritten Registrations......................... 19
11. Selection of Underwriters........................................... 19
12. Miscellaneous....................................................... 19
This Registration Rights Agreement (this "Agreement") is made and
---------
entered into as of January 26, 2001, by and among MeriStar Hospitality Operating
Partnership, L.P., a Delaware limited partnership (the "Company"), MeriStar
-------
Hospitality Finance Corp., a Delaware corporation (the "Co-Issuer"; and,
---------
together with the Company, the "Issuers"), MeriStar Hospitality Corporation, a
-------
Maryland corporation (the "Parent"), the Subsidiary Guarantors listed on the
------
signature pages hereto (the "Subsidiary Guarantors"; and, together with the
---------------------
Parent, the "Guarantors"; the Guarantors and the Issuers being collectively
----------
referred to herein as the "Issuing Parties") and certain accounts managed by Oak
---------------
Hill Advisors, Inc. and its affiliates listed on the signature pages hereto
(collectively, the "Investors").
---------
This Agreement is entered into in connection with the Purchase
Agreement, dated January 19, 2001, among the Company, the Parent and the
Investors (the "Purchase Agreement"), which provides for the sale by the Issuers
------------------
to the Investors of (i) $30,000,000 principal amount of the Issuers' 9% Senior
Notes due 2008 (the "2008 Notes") and (ii) $20,000,000 principal amount of the
----------
Issuers' 9 1/8% Senior Notes due 2011 (the "2011 Notes"; and, together with the
----------
2008 Notes, the "Notes"). The Notes will be guaranteed on a senior basis by
-----
guarantees (the "Guarantees") issued by the Guarantors. The Notes and the
----------
Guarantees are collectively referred to herein as the "Securities". Capitalized
----------
terms used but not specifically defined herein have the respective meanings
ascribed thereto in the Purchase Agreement. As an inducement to the Investors
to enter into the Purchase Agreement and in satisfaction of a condition to their
obligations thereunder, the Issuing Parties agree with the Investors, for the
benefit of the holders of the Securities (including the Investors), as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
2008 Notes: As defined in the preamble hereto.
----------
2011 Notes: As defined in the preamble hereto.
----------
Affiliate: As defined in Rule 405 under the Securities Act.
---------
Broker-Dealer: Any broker or dealer registered under the Exchange
-------------
Act.
Business Day: As defined in the Indenture.
------------
Closing Date: The date on which the Securities were sold.
------------
Co-Issuer: As defined in the preamble hereto.
---------
Commission: The Securities and Exchange Commission.
----------
Company: As defined in the preamble hereto.
-------
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
----------
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Securities to be issued in the Exchange
Offer, (ii) the maintenance of such Registration
1
Statement continuously effective and the keeping of the Exchange Offer open
for a period not less than the minimum period required pursuant to Section
3(b) hereof, and (iii) the delivery by the Issuing Parties of the Exchange
Securities in the same aggregate principal amount as the aggregate
principal amount of Transfer Restricted Securities that were validly
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Securities, each
--------------------
Distribution Date until the earlier of (i) the date on which Liquidated
Damages no longer are payable or (ii) maturity of the Securities.
Distribution Date: Every January 15 and July 15 of each year,
-----------------
beginning with July 15, 2001; provided, that if such day is not a Business
Day, the Distribution Date shall be the next succeeding Business Day.
Effectiveness Target Date: As defined in Section 5 hereof.
-------------------------
Exchange Act: The Securities Exchange Act of 1934, as amended.
------------
Exchange Offer: The registration by the Issuing Parties under the
--------------
Securities Act of the Exchange Securities pursuant to a Registration
Statement pursuant to which the Issuing Parties offer the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all
such outstanding Transfer Restricted Securities held by such Holders for
Exchange Securities in an aggregate amount equal to the aggregate amount of
the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement
-------------------------------------
relating to the Exchange Offer, including the Prospectus which forms a part
thereof.
Exchange Securities: The Securities to be issued pursuant to the
-------------------
Indenture in the Exchange Offer.
Guarantees: As defined in the preamble hereto.
----------
Guarantors: As defined in the preamble hereto.
----------
Holders: As defined in Section 2 hereof.
-------
Indenture: The Indenture, dated as of January 26, 2001, among the
---------
Issuing Parties and the Trustee, pursuant to which the Securities are to be
issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Investors: As defined in the preamble hereto.
---------
Issuers: As defined in the preamble hereto.
-------
Issuing Parties: As defined in the preamble hereto.
---------------
Liquidated Damages: As defined in Section 5 hereof.
------------------
2
NASD: National Association of Securities Dealers, Inc.
----
Notes: As defined in the preamble hereto.
-----
Participant: As defined in Section 8 hereof.
-----------
Person: An individual, partnership, corporation, limited liability
------
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
----------
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
------------------
Registration Default: As defined in Section 5 hereof.
--------------------
Registration Statement: Any registration statement of the Issuing
----------------------
Parties relating to (a) an offering of Exchange Securities pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement, in either case, including the
Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities: As defined in the preamble hereto.
----------
Securities Act: The Securities Act of 1933, as amended.
--------------
Shelf Filing Deadline: As defined in Section 4 hereof.
---------------------
Shelf Registration Statement: As defined in Section 4 hereof.
----------------------------
Subsidiary Guarantors: As defined in the preamble hereto.
---------------------
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-
---
77bbbb), as amended.
Transfer Restricted Securities: Each Security, until the earliest to
------------------------------
occur of (a) the date on which such Security has been exchanged by a person
other than a Broker-Dealer for Exchange Securities in the Exchange Offer,
(b) following the exchange by a Broker-Dealer in the Exchange Offer of such
Security for one or more Exchange Securities, the date on which such
Exchange Securities are 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, (c) the date on
which such Security has been effectively registered under the Securities
Act and disposed of in accordance with the
3
Shelf Registration Statement or (d) the date on which such Security is
eligible to be distributed to the public pursuant to Rule 144 under the
Securities Act;
Trustee: U.S. Bank Trust National Association, in its capacity as
-------
trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A registration in
------------------------- ---------------------
which securities of the Issuing Parties are sold to an underwriter for
reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to the
------------------------------
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
-----------------------------------------
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
------
Person owns Transfer Restricted Securities.
3. Registered Exchange Offer. (a) Unless the Exchange Offer shall not be
permissible under applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with) or one of the events set
forth in Section 4(a)(ii) has occurred the Issuing Parties shall (i) cause to be
filed with the Commission promptly after the Closing Date, but in no event later
than 150 days after the Closing Date, a Registration Statement under the
Securities Act relating to the Exchange Securities and the Exchange Offer, (ii)
use their best efforts to cause such Registration Statement to become effective
no later than 210 days after the Closing Date, (iii) in connection with the
foregoing, file (A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such Registration
Statement pursuant to Rule 430A under the Securities Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Securities to be made under the Blue Sky laws of such jurisdictions as
are necessary to permit Consummation of the Exchange Offer, and (iv) unless the
Exchange Offer would not be permitted by applicable law or Commission policy,
the Issuing Parties will commence the Exchange Offer and use their best efforts
to issue on or prior to 30 business days after the date on which such
Registration Statement was declared effective by the Commission, Exchange
Securities in exchange for all Transfer Restricted Securities tendered prior
thereto in the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Exchange Securities to be offered in
exchange for the Transfer Restricted Securities and to permit resales of
Exchange Securities held by Broker-Dealers as contemplated by Section 3(c)
below. The 90, 150 and 30 business day periods referred to in (i), (ii) and
(iii) of this Section 3(a) shall not include any period during which the Issuing
Parties are pursuing a Commission ruling pursuant to Section 6(a)(i) below.
(b) The Issuing Parties shall use their best efforts to cause the
Exchange Offer Registration Statement to be effective continuously and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 business days. The Issuing Parties shall cause the Exchange Offer to
comply in
4
all material respects with all applicable federal and state securities laws. No
securities other than the Exchange Securities shall be included in the Exchange
Offer Registration Statement. Each of the Issuing Parties shall use its best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Issuing Parties shall indicate in a "Plan of Distribution"
section contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Securities that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuing Parties), may exchange
such Securities pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must, therefore, deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of the Exchange Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Exchange Securities held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy announced after the date of this Agreement.
The Issuing Parties shall use their best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Exchange Securities acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer Registration Statement is declared effective.
The Issuing Parties shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 180 day period in order to facilitate such resales.
5
4. Shelf Registration.
(a) Shelf Registration. If (i) the Issuing Parties are not required
------------------
to file an Exchange Offer Registration Statement or to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities that
is a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) shall notify the Issuing Parties prior to the 20/th/ day
following the Consummation of the Exchange Offer (A) that such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) that such Holder may not resell the Exchange Securities
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(C) that such Holder is a Broker-Dealer and holds Securities acquired directly
from an Issuing Party or one of its Affiliates, then the Issuing Parties shall
in lieu of, or in the event of (ii) above, in addition to effecting the
registration of the Exchange Securities pursuant to the Exchange Offer
Registration Statement, use their best efforts to:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
-----
Registration Statement"), on or prior to the earlier to occur of (1) the
----------------------
60th day after the date on which the Issuing Parties determine that they
are not required to file the Exchange Offer Registration Statement or (2)
the 60th day after the date on which the Issuing Parties receive notice
from a Holder of Transfer Restricted Securities as contemplated by clause
(ii) above (such earlier date being the "Shelf Filing Deadline"), which
---------------------
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 120th day after the Shelf
Filing Deadline.
The Issuing Parties shall use their best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Securities by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 4(a), and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period ending on the second anniversary of the Closing Date.
(b) Provision by Holders of Certain Information in Connection with the
------------------------------------------------------------------
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
----------------------------
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuing Parties in writing, within 20 business days after receipt of a
request therefor, such information as the Issuing Parties may reasonably request
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to
6
Liquidated Damages pursuant to Section 5 hereof unless and until such Holder
shall have used its best efforts to provide all such reasonably requested
information. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Issuing Parties all information
required to be disclosed in order to make the information previously furnished
to the Issuing Parties by such Holder not materially misleading.
5. Liquidated Damages
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
-------------------------
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (a) through (d), a "Registration Default"), the Issuing
--------------------
Parties will jointly and severally be obligated to pay additional cash interest
("Liquidated Damages") to each Holder of the Securities commencing upon the
------------------
occurrence of such Registration Default in an amount equal to $.05 per week per
$1,000 principal amount of Securities held by such Holder. The amount of
Liquidated Damages will increase by an additional $.05 per week per $1,000
principal amount of Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
Liquidated Damages of $.50 per week per $1,000 principal amount of Securities.
All accrued Liquidated Damages shall be paid to Holders by the Issuing Parties
in the same manner as interest is paid pursuant to the Indenture. Following the
cure of all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of Liquidated Damages with respect to such Transfer
Restricted Securities will cease.
All obligations of the Issuing Parties set forth in the preceding
paragraph that have accrued and are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in full.
(b) The Issuing Parties shall notify the Trustee within one business
day after each and every date on which an event occurs in respect of which
Liquidated Damages are required to be paid (an "Event Date"). Liquidated
----------
Damages shall be paid by depositing Liquidated Damages with the Trustee, in
trust, for the benefit of the Holders of the Securities, on or before the
applicable Interest Payment Date (whether or not any payment other than
Liquidated Damages is payable on such Securities), in immediately available
funds in sums sufficient to pay the Liquidated Damages then due to such Holders.
Each obligation to pay Liquidated Damages shall be deemed to accrue from the
applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
7
(a) Exchange Offer Registration Statement. In connection with the
-------------------------------------
Exchange Offer, the Issuing Parties shall comply with all of the provisions of
Section 6(c) below, shall use their best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If in the reasonable opinion of counsel to the Issuing
Parties there is a question as to whether the Exchange Offer is permitted
by applicable law, the Issuing Parties hereby agree to seek a no-action
letter or other favorable decision from the Commission allowing the Issuing
Parties to Consummate an Exchange Offer for such Securities. The Issuing
Parties hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The Issuing
Parties hereby agree, however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Issuing Parties setting forth the legal bases,
if any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursue a resolution (which need not
be favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Issuing Parties, prior to
the Consummation thereof, a written representation to the Issuing Parties
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of any of the Issuing Parties, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Securities to be
issued in the Exchange Offer and (C) it is acquiring the Exchange
Securities in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in the
Issuing Parties' preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and
----------------------------
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
----------------------------------
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including ▇▇▇▇▇ & ▇▇▇▇ LLP (available February
----------------
7, 1997), and any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be covered
by an effective registration statement containing the selling security
holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Exchange Securities obtained by such
Holder in exchange for Securities acquired by such Holder directly from the
Issuing Parties.
(iii) Prior to the effectiveness of the Exchange Offer
Registration Statement, the Issuing Parties shall provide a supplemental
letter to the Commission (A)
8
stating that the Issuing Parties are registering the Exchange Offer in
reliance on the position of the Commission enunciated in Exxon Capital
-------------
Holdings Corporation (available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc.
-------------------- ---------------------------
(available June 5, 1991), ▇▇▇▇▇ & Wood LLP (available February 7, 1997)
----------------
and, if applicable, any no-action letter obtained pursuant to clause (i)
above and (B) including a representation that the Issuing Parties have not
entered into any arrangement or understanding with any Person to distribute
the Exchange Securities to be received in the Exchange Offer and that, to
the best of the Issuing Parties' information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Securities in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Securities received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
----------------------------
Registration Statement, the Issuing Parties shall comply with all the provisions
of Section 6(c) below and shall use their best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Issuing Parties will as expeditiously as possible prepare
and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which form shall
be available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
------------------
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Securities by Broker-Dealers), the Issuing Parties shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable;
upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale
of Transfer Restricted Securities during the period required by this
Agreement, the Issuing Parties shall file promptly an appropriate amendment
to such Registration Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A) or
(B), use their best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a
9
timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) in the case of a Shelf Registration, advise the
underwriter(s), if any, and selling Holders promptly and, if requested by
such Persons, to confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and,
with respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Securities Act or
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Issuing
Parties shall use their best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) in the case of a Shelf Registration, furnish to each of the
selling or exchanging Holders and each of the underwriter(s), if any,
before filing with the Commission, copies of any Registration Statement or
any Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review of such Holders
and underwriter(s), if any, for a period of at least five business days,
and the Issuing Parties will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which selling Holders of a majority in Liquidation Amount of
Transfer Restricted Securities covered by such Registration Statement or
the underwriter(s), if any, shall reasonably object within five business
days after the receipt thereof. A selling Holder or underwriter, if any,
shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as applicable,
as proposed to be filed, contains a material misstatement or omission;
(v) in the case of a Shelf Registration, promptly prior to the
filing of any document that is to be incorporated by reference into a
Registration Statement or
10
Prospectus, provide copies of such document to the selling Holders and to
the underwriter(s), if any, make the Issuing Parties' representatives
available for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the filing
thereof as such selling Holders or underwriter(s), if any, reasonably may
request;
(vi) in the case of a Shelf Registration, make available at
reasonable times for inspection by the selling Holders, any underwriter
participating in any disposition pursuant to such Registration Statement,
and any attorney or accountant retained by such selling Holders or any of
the underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Issuing Parties and cause the Issuing
Parties' officers, directors, managers and employees to supply all
information reasonably requested by any such Holder, underwriter, attorney
or accountant in connection with such Registration Statement subsequent to
the filing thereof and prior to its effectiveness;
(vii) in the case of a Shelf Registration, if requested by any
selling Holders or the underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a supplement or post-
effective amendment if necessary, such information as such selling Holders
and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
----
of Distribution" of the Transfer Restricted Securities, information with
---------------
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Issuing Parties are notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Securities covered thereby or the underwriter(s), if any;
(ix) in the case of a Shelf Registration, furnish to each
selling Holder and each of the underwriter(s), if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) in the case of a Shelf Registration, deliver to each
selling Holder and each of the underwriter(s), if any, without charge, as
many copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably may request;
each of the Issuing Parties hereby consent to the use of the Prospectus and
any amendment or supplement thereto by each of the selling Holders and each
of the underwriter(s), if any, in connection with the offering and the
11
sale of the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) in the case of a Shelf Registration, enter into such
agreements (including an underwriting agreement), and make such
representations and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as may be requested by
any Purchaser or by any Holder of Transfer Restricted Securities or
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and in connection
with an Underwritten Registration, the Issuing Parties shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may request
and as are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the effectiveness of the
Shelf Registration Statement:
(1) a certificate, dated the date of the effectiveness of
the Shelf Registration Statement, signed by (y) the Chairman of
the Board, its President or a Vice President and (z) the Chief
Financial Officer of the Issuing Parties, confirming, as of the
date thereof, such matters as such parties may reasonably
request;
(2) an opinion, dated the date of the effectiveness of
the Shelf Registration Statement, of counsel for the Issuing
Parties, covering such matters as such parties may reasonably
request, and in any event including a statement to the effect
that such counsel has participated in conferences with officers
and other representatives of the Issuing Parties, representatives
of the independent public accountants for the Issuing Parties,
the Investors' representatives and the Investors' counsel in
connection with the preparation of such Registration Statement
and the related Prospectus and have considered the matters
required to be stated therein and the statements contained
therein, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and that
such counsel advises that, on the basis of the foregoing (relying
as to materiality to a large extent upon facts provided to such
counsel by officers and other representatives of the Issuing
Parties and without independent check or verification), no facts
came to such counsel's attention that caused such counsel to
believe that the applicable Registration Statement, at the time
such Registration Statement or any post-effective amendment
thereto became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such Registration
Statement as of its date, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements
12
therein, in light of the circumstances under which they were
made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial and statistical data
included in any Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of the
effectiveness of the Shelf Registration Statement, from the
Issuing Parties' independent accountants, in the customary form
and covering matters of the type customarily covered in comfort
letters to underwriters in connection with primary underwritten
offerings.
(B) set forth in full or incorporated by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuing
Parties pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Issuing
Parties contemplated in clause (A)(1) above cease to be true and
correct, the Issuing Parties shall so advise the Investors' and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) in the case of a Shelf Registration, prior to any public
offering of Transfer Restricted Securities, cooperate with the selling
Holders, the underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may reasonably
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however,
that the Issuing Parties shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) in the case of a Shelf Registration, shall issue, upon
the request of any Holder of Securities covered by the Shelf Registration
Statement, Exchange Securities in the same amount as the Securities
surrendered to the Issuing Parties by such Holder in exchange therefor or
being sold by such Holder; such Exchange Securities to be registered in the
name of such Holder or in the name of the purchaser(s) of such
13
Exchange Securities, as the case may be; in return, the Securities held by
such Holder shall be surrendered to the Issuing Parties for cancellation;
(xiv) in the case of a Shelf Registration, cooperate with the
selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xv) use their best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xvii) provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide certificates for the Transfer Restricted Securities;
(xviii)cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their best efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities
as may be necessary to enable the Holders selling Transfer Restricted
Securities to consummate the disposition of such Transfer Restricted
Securities; provided, however, that no Issuing Party shall be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not
now so subject;
(xix) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are
14
sold to underwriters in a firm or best efforts Underwritten Offering or (B)
if not sold to underwriters in such an offering, beginning with the first
month of the respective Issuing Party's first fiscal quarter commencing
after the effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders of Securities to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of the TIA; and execute and use their best efforts to cause the
Trustee to execute all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
and
(xxi) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Issuing Parties of the existence of
any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "Advice") by the Issuing Parties
------
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Issuing Parties, each Holder will deliver to
the Issuing Parties (at the Issuing Parties' expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Issuing Parties shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Issuing Parties' performance of or
compliance with this Agreement will be borne, jointly and severally, by the
Issuing Parties, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses (including filings made by any Purchaser or Holder with the NASD
(and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Exchange Securities to be issued in the Exchange
Offer and printing of Prospectuses), and associated messenger and delivery
15
services and telephone; (iv) all fees and disbursements of counsel for the
Issuing Parties; (v) all application and filing fees in connection with listing
Securities on a national securities exchange or automated quotation system; and
(vi) all fees and disbursements of independent certified public accountants of
the Issuing Parties (including the expenses of any special audit and comfort
letters required by or incident to such performance).
Each Issuing Party will, in any event, bear their internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by such Issuing Party.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in connection
with any delivery of a Prospectus contained in an Exchange Offer Registration
Statement by any participating Broker-Dealer or Investors', as applicable, who
seeks to sell Exchange Securities, each of the Issuing Parties, jointly and
severally, shall indemnify and hold harmless each Holder of Transfer Restricted
Securities included within any such Shelf Registration Statement and each
participating Broker-Dealer or Investors selling Exchange Securities, and each
person, if any, who controls any such person within the meaning of Section 15 of
the Securities Act (each, a "Participant") from and against any loss, claim,
-----------
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Securities) to which such Participant or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Participant promptly upon demand for any legal or other expenses reasonably
incurred by such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) no Issuing Party shall
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any such
Registration Statement or any prospectus forming part thereof or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to such Issuing Party by or on behalf of any Participant
specifically for inclusion therein; and provided further that as to any
preliminary Prospectus, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of any such Participant or any controlling person
of such Participant on account of any loss, claim, damage, liability or action
arising from the sale of the Exchange Securities to any person by that
Participant if (i) that Participant failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act and (ii) the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary Prospectus was corrected in the Prospectus,
unless, in each case, such failure resulted from non-compliance by any Issuing
Party with Section 6(c). The
16
foregoing indemnity agreement is in addition to any liability which any Issuing
Party may otherwise have to any Participant or to any controlling person of that
Participant.
(b) Each Participant, severally and not jointly, shall indemnify and
hold harmless each of the Issuing Parties, their respective directors, officers,
employees or agents and each person, if any, who controls any Issuing Party
within the meaning of Section 15 of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which any Issuing Party or any such director, officer, employees or
agents or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, 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 furnished to such Issuing Party by or on behalf of that
Participant specifically for inclusion herein, and shall reimburse such Issuing
Party and any such director, officer, employees or agents or controlling person
for any legal or other expenses reasonably incurred by such Issuing Party or any
such director, officer, employees or agents or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Participant may
otherwise have to any Issuing Party or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall have notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that the indemnified party shall have the right to employ counsel to represent
jointly the indemnified party and those other Participants and its respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Participants against the indemnifying party under this Section 8 if, in the
reasonable judgment of the indemnified party it is advisable for the indemnified
party and those Participants, officers, employees and controlling persons to
17
be jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the indemnifying party. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to local counsel). Each indemnified party, as a
condition of the indemnity agreements contained in Section 8, shall use its best
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of such Issuing
Party on the one hand and the Participants on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
Issuing Party or the Participants, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Issuing Parties and the Participants agree that it
would not be just and equitable if contributions pursuant to this Section 8(d)
were to be determined by pro rata allocation (even if the Participants were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), 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 8(d), no Participant
shall be required to contribute any amount in excess of the amount by which
proceeds received by such Participant from an offering of the Securities exceeds
the amount of any damages which such Participant has otherwise paid or become
liable to pay by reason of any 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. The Participants' obligations to contribute as provided in
this Section 8(d) are several and not joint.
18
9. Rule 144A.
Each of the Issuing Parties hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Issuing Parties;
provided, that such investment bankers and managers must be reasonably
satisfactory to the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering.
12. Miscellaneous.
(a) Remedies. The Issuing Parties agree that monetary damages
--------
(including Liquidated Damages) would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agree to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. None of the Issuing Parties
--------------------------
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof. No
Issuing Party has previously entered into any agreement granting any
registration rights with respect to its securities to any Person (other than
▇▇▇▇▇▇ Brothers, Inc. and ▇▇ ▇▇▇▇▇ Securities Corporation, Oak Hill Securities
Fund, L.P., Oak Hill Securities Fund II, L.P. or other accounts managed by Oak
Hill Advisors, Inc. or its Affiliates). The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Issuing Parties' securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Issuing Parties
------------------------------------
will not take any action, or permit any change to occur, with respect to
Securities that would materially and
19
adversely affect the ability of the Holders to Consummate any Exchange Offer
unless such action or change is required by applicable law.
(d) Amendments and Waivers. The provisions of this Agreement
----------------------
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Issuing
Parties have obtained the written consent of (i) Holders of a majority of the
outstanding principal amount of the 2008 Notes and (ii) Holders of a majority of
the outstanding principal amount of the 2011 Notes. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for
-------
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address of such Holder
maintained by the Registrar under the Indenture; and
(ii) if to any of the Issuing Parties:
MeriStar Hospitality Operating Partnership, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
20
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
(j) Severability. In the event that 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.
(k) Entire Agreement. This Agreement, together with the other
----------------
transaction documents, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Issuing Parties with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandisngs among the parties with respect to such subject matter.
(l) Required Consents. Whenever the consent or approval of Holders of
-----------------
a specified percentage of Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by any Issuing Party or any of its
respective Affiliates shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Issuers:
-------
MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership
By: MeriStar Hospitality Corporation, as
general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
MERISTAR HOSPITALITY FINANCE CORP., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
Parent:
------
MERISTAR HOSPITALITY CORPORATION, a Maryland
corporation
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
22
Subsidiary Guarantors:
---------------------
MERISTAR ACQUISITION COMPANY, L.L.C., a Delaware
limited liability company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
AGH PSS I, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
AGH UPREIT LLC, a Delaware limited liability company
By: MeriStar Hospitality Corporation, a Maryland
corporation, member
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
23
CAPSTAR HOUSTON SW PARTNERS, L.P.
CAPSTAR MEDALLION HOUSTON PARTNERS, L.P.
CAPSTAR MEDALLION DALLAS PARTNERS, L.P.
CAPSTAR MEDALLION AUSTIN PARTNERS, L.P.
CAPSTAR MIDLAND PARTNERS, L.P.
CAPSTAR DALLAS PARTNERS, L.P.
CAPSTAR MOCKINGBIRD PARTNERS, L.P.
Each of the above being a Delaware limited partnership
By: MeriStar Hospitality Operating Partnership, L.P.,
Delaware limited partnership, general partner
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
24
EQUISTAR SCHAUMBURG COMPANY, L.L.C.
EQUISTAR BELLEVUE COMPANY, L.L.C.
EQUISTAR CLEVELAND COMPANY, L.L.C.
EQUISTAR ▇▇▇▇▇▇ COMPANY, L.L.C.
EQUISTAR VIRGINIA COMPANY, L.L.C.
EQUISTAR BALLSTON COMPANY, L.L.C.
EQUISTAR SALT LAKE COMPANY, L.L.C.
EQUISTAR ATLANTA GP COMPANY, L.L.C.
EQUISTAR ATLANTA LP COMPANY, L.L.C.
CAPSTAR WASHINGTON COMPANY, L.L.C.
CAPSTAR CS COMPANY, L.L.C.
CAPSTAR SAN ▇▇▇▇▇ COMPANY, L.L.C.
CAPSTAR LOUISVILLE COMPANY, L.L.C.
CAPSTAR LEXINGTON COMPANY, L.L.C.
CAPSTAR OKLAHOMA CITY COMPANY, L.L.C.
CAPSTAR CHERRY HILL COMPANY, L.L.C.
CAPSTAR ▇▇▇▇▇▇ COMPANY, L.L.C.
CAPSTAR KC COMPANY, L.L.C.
CAPSTAR NATIONAL AIRPORT COMPANY, L.L.C.
CAPSTAR GEORGETOWN COMPANY, L.L.C.
CAPSTAR JEKYLL COMPANY, L.L.C.
CAPSTAR DETROIT AIRPORT COMPANY, L.L.C.
CAPSTAR TUCSON COMPANY, L.L.C.
CAPSTAR MESA COMPANY, L.L.C.
CAPSTAR MORRISTOWN COMPANY, L.L.C.
CAPSTAR INDIANAPOLIS COMPANY, L.L.C.
CAPSTAR CHICAGO COMPANY, L.L.C.
CAPSTAR WINDSOR LOCKS COMPANY, L.L.C.
CAPSTAR HARTFORD COMPANY, L.L.C.
CAPSTAR CROSS KEYS COMPANY, L.L.C.
CAPSTAR COLUMBIA COMPANY, L.L.C.
CAPSTAR ▇▇▇▇▇▇ PARK COMPANY, L.L.C.
CAPSTAR ▇▇▇▇▇▇▇▇▇ COMPANY, L.L.C.
Each of the above being a Delaware limited liability
company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
25
MERISTAR SANIBEL INN COMPANY, LLC
MERISTAR SUNDIAL BEACH COMPANY, LLC
MERISTAR SAFETY HARBOR COMPANY, LLC
MERISTAR SEASIDE INN COMPANY, LLC
MERISTAR PLANTATION SHOPPING CENTER COMPANY, LLC
MERISTAR SONG OF THE SEA COMPANY, LLC
MERISTAR SHIRLEY'S PARCEL COMPANY, LLC
MERISTAR SANIBEL GOLF COMPANY, LLC
MERISTAR MARCO ISLAND COMPANY, LLC
MERISTAR S.S. PLANTATION COMPANY, LLC
MERISTAR HOTEL (CALGARY AIRPORT) LLC
MERISTAR HOTEL (VANCOUVER) LLC
MERISTAR HOTEL (SURREY) LLC
MERISTAR HOTEL (BURNABY) LLC
AGH 75 ARLINGTON HEIGHTS LLC
Each of the above being a Delaware limited liability
company
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
MERISTAR SANTA BARBARA, L.P., a Delaware limited
partnership
MeriStar Cathedral City, L.P., a Delaware limited
partnership
MeriStar LAJV, L.P., a Delaware limited partnership
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
26
75 ARLINGTON HEIGHTS LIMITED PARTNERSHIP, L.P., a
Delaware limited partnership
By: AGH 75 Arlington Heights LLC, a Delaware limited
liability company, general partner
By: MeriStar Hospitality Operating Partnership,
L.P., a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
BCHI ACQUISITION, LLC, a Delaware limited liability
company
By: AGH UPREIT LLC, a Delaware limited liability
company, member
By: MeriStar Hospitality Operating Partnership,
L.P., a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
By: MeriStar Hospitality Operating Partnership,
L.P., a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
27
MDV LIMITED PARTNERSHIP, a Texas limited partnership
183 HOTEL ASSOCIATES, LTD., a Texas limited partnership
LAKE BUENA VISTA PARTNERS, LTD., a Florida limited
partnership
DURHAM I-85 LIMITED PARTNERSHIP, a Delaware limited
partnership
COCOA BEACH HOTELS, LTD., a Florida limited partnership
By: AGH UPREIT LLC, a Delaware limited liability
company, their general partner
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
HOTEL COLUMBIA COMPANY, a Maryland general partnership
By: CapStar Columbia Company, L.L.C., a Delaware
limited liability company, partner
By: MeriStar Hospitality Operating Partnership,
L.P., a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
By: CapStar ▇▇▇▇▇▇ Park Company, L.L.C., a
Delaware limited liability company,
partner
By: MeriStar Hospitality Operating Partnership,
L.P., a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
28
MERISTAR LP, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
3100 GLENDALE JOINT VENTURE, an Ohio general
partnership
By: AGH UPREIT LLC, a Delaware limited liability
company, partner
By: MeriStar Hospitality Operating Partnership,
L.P., a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, partner
By: MeriStar Hospitality Corporation, a Maryland
corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
MERISTAR HOTEL LESSEE, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President, Legal
29
Accepted as of the date thereof:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its general partner
By: Oak Hill Securities MPG, Inc.
its general partner
By: /s/ ▇▇▇▇▇ ▇. August
-----------------------------------
▇▇▇▇▇ ▇. August
President
OAK HILL SECURITIES FUND II, L.P.
By: Oak Hill Securities GenPar II, L.P.
its general partner
By: Oak Hill Securities MPG II, Inc.
its general partner
By: /s/ ▇▇▇▇▇ ▇. August
-----------------------------------
▇▇▇▇▇ ▇. August
President
▇▇▇▇▇▇ ENTERPRISES-SPECIAL, L.P.
By: Oak Hill Asset Management, Inc.,
as advisor and attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇. August
-----------------------------------
▇▇▇▇▇ ▇. August
Vice President
P&P.K. FAMILY LIMITED PARTNERSHIP
By: Oak Hill Asset Management, Inc.,
as advisor and attorney-in-fact
By: /s/ ▇▇▇▇▇ ▇. August
-----------------------------------
▇▇▇▇▇ ▇. August
Vice President
30