EXHIBIT 1.2
REGISTRATION RIGHTS AGREEMENT
Dated as of May 18, 1998
by and among
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
and
TERRA NOVA (BERMUDA) HOLDINGS LTD.
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
_________________________________
7.0% Senior Notes Due 2008
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and
entered into as of May 18, 1998, by and among Terra Nova Insurance (UK) Holdings
PLC, a company organized under the laws of England and Wales (the "COMPANY"),
Terra Nova (Bermuda) Holdings Ltd., a company organized under the laws of
Bermuda (the "GUARANTOR") and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation (the "PURCHASER").
This Agreement is made pursuant to the Purchase Agreement dated May 12,
1998 (the "PURCHASE AGREEMENT") between the Company, the Guarantor and the
Purchaser which provides for the sale by the Company to the Purchaser of
$100,000,000 aggregate principal amount of the Company's 7.0% Senior Notes Due
2008 (the "NOTES"), which are guaranteed by the Guarantor. In order to induce
the Purchaser to enter into the Purchase Agreement and purchase the Notes, the
Company and the Guarantor have agreed to provide the registration rights and
perform the obligations set forth in this Agreement. The execution of this
Agreement is a condition to the purchase of the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Definitions.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"AGREEMENT" has the meaning set forth in the first paragraph of this
Agreement.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
or ▇▇▇▇▇▇▇▇, Bermuda or London, England are authorized or obligated by law,
regulation or executive order to close.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the first paragraph of this
Agreement and also includes the Company's successors.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" means 7.0% Senior Notes Due 2008 issued by the Company
under the Indenture and guaranteed by the Guarantor on the same terms as the
Notes, and containing terms identical to the Notes (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from May 18, 1998, (ii) the Exchange
Notes will not contain restrictions on transfer, and (iii) the Exchange Notes
will not contain provisions relating to an increase in their interest rate under
certain circumstances) to be offered to Holders of Notes pursuant to the
Exchange Offer.
"EXCHANGE OFFER" means the exchange offer by the Company of Exchange
Notes for Registrable Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" means a registration under the Securities
Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer
registration statement on Form S-4 or F-4 (or, if applicable, on another
appropriate form) pursuant to the provisions of Section 2(a) of this Agreement
which covers all of the Exchange Notes and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference
therein.
"GUARANTOR" has the meaning set forth in the first paragraph of this
Agreement and also includes the Guarantor's successors.
"HOLDER" means the Purchaser, for so long as it owns any Registrable
Notes, and its successors, assigns and direct and indirect transferees who
become registered owners of Registrable Notes under the Indenture; provided that
for purposes of Sections 4 and 6 of this Agreement, the term "Holder" shall
include Participating Broker-Dealers as defined in Section 4(a).
"INDENTURE" means the Indenture relating to the Notes dated as of May
18, 1998 among the Company, the Guarantor and The Chase Manhattan Bank, as
Trustee, as amended or supplemented from time to time in accordance with the
terms thereof.
"NOTES" has the meaning set forth in the second paragraph of this
Agreement.
"PERSON" means an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
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"PURCHASE AGREEMENT" has the meaning set forth in the first paragraph
of this Agreement.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or supplement
thereto, with respect to the offering of any portion of the Registrable Notes
covered by such Registration Statement or of the Exchange Notes, as the case may
be, and all other amendments and supplements to the Prospectus, including
post-effective amendments and all material incorporated by reference or deemed
to be incorporated by reference therein.
"PURCHASER" has the meaning set forth in the first paragraph of this
Agreement.
"REGISTRABLE NOTES" means the Notes; provided that any Note shall cease
to be a Registrable Note upon the earlier to occur of (i) when a Registration
Statement with respect to such Note has been declared effective under the
Securities Act and such Note has been disposed of pursuant to such Registration
Statement, (ii) when such Note has become eligible for resale pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act, (iii) except with respect to any Note held by a Holder described
in clause (iii) of Section 2(b) hereof, an Exchange Offer has been consummated,
or (iv) such Notes shall cease to be outstanding.
"REGISTRATION EXPENSES" has the meaning set forth in Section 5 hereof.
"REGISTRATION STATEMENT" means any registration statement that covers
any of the Exchange Notes or Registrable Notes pursuant to the provisions of
this Agreement and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference or deemed to be incorporated by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"SHELF REGISTRATION" means a registration under the Securities Act
effected pursuant to Section 2(b) hereof.
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"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
on Form S-3 (or, if applicable, on another appropriate form) pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the Registrable
Notes (except Registrable Notes that the Holders have elected not to include in
such Shelf Registration Statement) under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the Commission, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference or deemed to be incorporated by
reference therein.
"SPECIAL COUNSEL" means ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the
Purchaser or such other special counsel as may be designated by the Holders of a
majority in aggregate principal amount of Registrable Notes outstanding.
"TRUSTEE" means the trustee with respect to the Notes under the
Indenture.
Section 2. Registration under the Securities Act.
(a) EXCHANGE OFFER REGISTRATION. To the extent not prohibited by any
applicable law or applicable interpretation of the Staff of the Commission, each
of the Company and the Guarantor agree to use its commercially reasonable
efforts to cause to be filed after the Closing Date an Exchange Offer
Registration Statement covering an offer by the Company to the Holders to
exchange all of the Registrable Notes (except Registrable Notes held by the
Purchaser and acquired directly from the Company if the Purchaser is not
permitted, pursuant to applicable law or any applicable interpretation of the
Staff of the Commission, to participate in the Exchange Offer) for Exchange
Notes and to have such Registration Statement remain effective until the closing
of the Exchange Offer. The Company shall commence the Exchange Offer promptly
after the Exchange Offer Registration Statement has been declared effective by
the Commission and use its commercially reasonable efforts to have the Exchange
Offer consummated not later than November 18, 1998. The Company shall commence
the Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such other
disclosures required by applicable law or the Indenture:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Notes validly tendered will be
accepted for exchange;
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(ii) the dates of acceptance for exchange (which shall be a
period of not less than 20 Business Days from the date such notice is
first mailed) (the "EXCHANGE DATES");
(iii) that any Registrable Note entitled to be exchanged in the
Exchange Offer not tendered or tendered and validly withdrawn will
remain outstanding and continue to accrue interest (but not at any
increased rate provided for under certain circumstances in such Notes),
but will not retain any rights under this Agreement;
(iv) that each Holder electing to have a Registrable Note
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Note, together with letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that each Holder will be entitled to withdraw its election
not later than the close of business on the last Exchange Date, by
sending to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Notes
delivered for exchange and a statement that such Holder is withdrawing
its election to have such Registrable Notes exchanged.
As soon as practicable after the last Exchange Date, the Company shall:
(i) accept for exchange Registrable Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, Exchange Notes equal in principal
amount to the principal amount of the Registrable Notes surrendered by
such Holder.
The Company shall use its commercially reasonable efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
5
violate applicable law or any applicable interpretation of the Staff of the
Commission.
(b) SHELF REGISTRATIONS. In the event that (i) the Company determines
that the Exchange Offer Registration provided in Section 2(a) above is not
available or may not be consummated as soon as practicable after the last
Exchange Date, (ii) the Exchange Offer is not for any other reason consummated
by November 18, 1998 or (iii) the Exchange Offer has been completed, and within
60 days following the consummation of the Exchange Offer, a Holder notifies the
Company that in the opinion of Special Counsel a Registration Statement must be
filed and a Prospectus must be delivered by it because (x) such Registrable
Notes represent an unsold allotment of the Registrable Notes purchased by the
Purchaser from the Company, (y) such Holder is a Participating Broker-Dealer, or
(z) such Holder was otherwise not permitted to participate in the Exchange
Offer, unless the Company has previously done so, the Company shall use its
commercially reasonable efforts to cause to be filed as soon as practicable
after such determination, date or notice of such Special Counsel's opinion is
given to the Company, as the case may be, a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Notes and to
have such Shelf Registration Statement declared effective by the Commission. The
Company shall use its commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective for a period of three years from
the Closing Date or such shorter period which will terminate when all the
Registrable Notes covered by the Shelf Registration have been sold pursuant to
the Shelf Registration Statement. The Company shall also supplement or amend
such Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company or if
required by the Securities Act or by any other rules and regulations thereunder
for shelf registration or if reasonably requested by a Holder with respect to
information relating to such Holder, and to use its commercially reasonable
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter practicable. The
Company agrees to furnish to the Holders of Registrable Notes copies of any such
supplement or amendment promptly after its being used or filed with the
Commission.
(c) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the Commission; provided that, if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference until the
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offering of Registrable Notes pursuant to such Registration Statement may
legally resume. In the event that either the Exchange Offer is not consummated
or a Shelf Registration Statement is not declared effective on or prior to
November 18, 1998, then the annual interest rate borne by the Notes shall be
increased by 0.25% beginning at such time. If either such Exchange Offer is not
consummated or such Shelf Registration Statement is not declared effective on or
prior to February 18, 1999, then the annual interest rate borne by the Notes
shall be increased by an additional 0.25% beginning at such time. Upon
consummation of such Exchange Offer or the effectiveness of such Shelf
Registration Statement, the interest borne by the Notes will revert to the
original rate.
(d) Without limiting the remedies available to the Purchaser and the
Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Purchaser or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2(a) and 2(b)
hereof.
(e) The Guarantor hereby agrees to cause the Company to perform all of
its obligations under this Section 2.
Section 3. Registration Procedures.
(a) In connection with the obligations of the Company and the
Guarantor pursuant to Sections 2(a), 2(b) and 2(d) hereof, the Company shall,
and the Guarantor shall take all action necessary to enable the Company and
shall cause the Company to:
(i) prepare and file with the Commission, within the applicable
time period specified in Section 2(a) and Section 2(b), a Registration
Statement or Registration Statements on the appropriate form under the
Securities Act, which form (A) shall be selected by the Company and (B)
shall, in the case of a Shelf Registration Statement, be available for
the sale of the Registrable Notes in accordance with the intended
method or methods of distribution as the Company is so advised of by
the selling Holders thereof and (C) shall comply as to form in all
material respects with the requirements of the applicable form and
include (including through incorporation by reference) all financial
statements required by the Commission to be filed therewith, and the
Company shall use its commercially reasonable efforts to cause each
such Registration Statement
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to become effective and remain effective in accordance with Section 2
hereof;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the applicable period and cause each Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented, to be
filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and to keep each Prospectus current during
the period described under Section 4(3) and Rule 174 under the
Securities Act that is applicable to transactions by brokers or dealers
with respect to the Registrable Notes or Exchange Notes;
(iii) a reasonable time prior to the filing of any Registration
Statement or Prospectus or any amendments or supplements thereto or any
document which is to be incorporated or deemed to be incorporated
therein by reference and amendments to such documents, provide copies
of such document to the Holders and the Special Counsel and shall not
at any time file or make any amendment to the Registration Statement,
any Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Holders and the Special Counsel shall not have previously been
advised and furnished a copy or to which the Holders or the Special
Counsel shall reasonably object;
(iv) use its commercially reasonable efforts to register or
qualify the Exchange Notes or Registrable Notes for the exchange or
offer and sale, as the case may be, under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder
covered by a Registration Statement shall reasonably request in writing
by the time the applicable Registration Statement is declared effective
by the Commission, keep each such registration or qualification
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts and things which may be
necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Notes or
Exchange Notes owned by such Holder; provided that the Company will not
be required to (A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(a)(iii), (B) take any action which
would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) take any action which
8
would subject it to taxation in any such jurisdiction where it is not
then so subject;
(v) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement and provide prompt notice to each Holder and the Special
Counsel of the withdrawal of any such order;
(vi) use its commercially reasonable efforts to obtain the
consent or approval of each United States governmental agency or
authority, whether federal, state or local, required to be obtained by
the Company as may be necessary to enable the Holders thereof to
consummate the disposition of such Registrable Notes or Exchange Notes
and cooperate with each seller of Registrable Notes in connection with
any filings required to be made by such seller with the National
Association of Securities Dealers, Inc.;
(vii) provide a trustee for the Registrable Notes or Exchange
Notes, as the case may be, and cause the Indenture (or the indenture
governing the Exchange Notes, if any) to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA") not later than the
effective date of any registration; and in connection therewith,
cooperate with the Trustee and the Holders to effect such changes to
such indenture as may be required for such indenture to be so qualified
in accordance with the terms of the TIA and execute, and use its
commercially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the Commission to enable
such indenture to be so qualified in a timely manner;
(viii) comply with all applicable rules and regulations of the
Commission and, in the case of a Shelf Registration, make generally
available to its security holders an earning statement satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year),
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statement shall cover said 12-month period;
9
(ix) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement; and
(x) use its commercially reasonable efforts to cause the
Exchange Notes or Registrable Notes, as the case may be, to be rated by
a nationally recognized statistical rating organization (as such term
is defined in Rule 436(g)(2) under the Securities Act) unless such
Notes are already so rated.
(b) In addition to the obligations set forth above in Section 3(a), in
the case of a Shelf Registration pursuant to Section 2(b) hereof, as
expeditiously as possible, the Company and the Guarantor shall:
(i) notify each Holder of Registrable Notes and the Special Counsel
promptly, and (if requested by any such Person) confirm such notice in
writing, (A) when a Prospectus, any Prospectus supplement, a
Registration Statement or post-effective amendment related to such
Registrable Notes has been filed, and, with respect to a Registration
Statement or any post-effective amendment related to such Registrable
Notes, when the same has become effective, (B) of any request by the
Commission or any federal or state governmental authority for
amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (C) of the issuance by the
Commission or any federal or state governmental authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) if,
between the effective date of a Registration Statement and the closing
of any sale of Registrable Notes covered thereby, the representations
and warranties of the Company or the Guarantor contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and
correct in all material respects, (E) of the receipt by the Company or
the Guarantor of any notification with respect to the suspension of the
qualification of any of the Registrable Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (F) of the existence of any fact or happening of any
event during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
which requires the making of any changes in a Registration Statement or
related Prospectus in order that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein
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not misleading, and that, in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (G) of the Company's or the Guarantor's
determination that a post-effective amendment to a Registration
Statement would be appropriate;
(ii) if reasonably requested by any Holder of Registrable Notes
covered by a Registration Statement, (A) incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as such Holder reasonably requests to be included therein,
(B) make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such filings
and (C) supplement or make amendments to any Registration Statement if
reasonably requested by any Holder of Registrable Notes covered by such
Registration Statement;
(iii) furnish to each Holder of Registrable Notes and the Special
Counsel and to each underwriter of an underwritten offering of
Registrable Notes, if any, without charge, at least one conformed copy
of each Registration Statement or Statements and any amendment thereto,
including financial statements and schedules, all documents
incorporated therein by reference or deemed incorporated therein by
reference and all exhibits (including those previously furnished or
incorporated by reference), as soon as practicable after the filing of
such documents with the Commission;
(iv) furnish to each Holder of Registrable Notes, the Special
Counsel and to each underwriter of an underwritten offering of
Registrable Notes, if any, without charge, as many copies of each
Prospectus or Prospectuses (including each preliminary Prospectus) and
any amendment or supplement thereto and such other documents as such
Persons may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Notes; and each of the Company
and the Guarantor hereby consents to the use of such Prospectus or any
amendment or supplement thereto in accordance with applicable law by
each of the selling Holders of Registrable Notes and any such
underwriter in connection with the offering and sale of the Registrable
Notes covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
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(v) cooperate with the selling Holders of Registrable Notes to
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold, which certificates shall not
bear any restrictive legends; and enable such Registrable Notes to be
in such denominations and registered in such names, in all cases
consistent with the requirements set forth in the Indenture, as the
Holders may request at least two Business Days prior to the closing of
any sale of Registrable Notes;
(vi) a reasonable time prior to the filing of any Registration
Statement or Prospectus or any amendments or supplements thereto or any
document which is to be incorporated or deemed to be incorporated
therein by reference and amendments to such documents, make such of the
representatives of the Company and the Guarantor as shall be reasonably
requested by the Holders or the Special Counsel available for
discussion of such document;
(vii) upon becoming aware of the occurrence of any event
contemplated by Section 3(b)(i)(f) or 3(b)(i)(g) above, use its
commercially reasonable efforts to, as promptly as practicable
thereafter, prepare and file with the Commission a post-effective
amendment to the applicable Registration Statement or a supplement to
the related Prospectus or any document incorporated therein by
reference or file any other required document that would be
incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and so that the
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder, and, in the case of a post-effective amendment to a
Registration Statement, use its commercially reasonable efforts to
cause it to become effective as promptly as is practicable. Each of the
Company and the Guarantor agrees to notify the Holders and the Special
Counsel to suspend use of the Prospectus as promptly as practicable
after becoming aware of the occurrence of such an event, and the
Holders hereby agree to suspend use of the Prospectus upon receipt of
such notice until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(viii) enter into such customary agreements and take all such
other customary actions in connection therewith (including those
reasonably
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requested by the Holders of a majority of the Registrable Notes being
sold) as are reasonably required to expedite or facilitate the
disposition of such Registrable Notes including, but not limited to, an
underwritten offering and in connection therewith, (A) to the extent
practicable, make such representations and warranties to the Holders
and any underwriters of such Registrable Notes with respect to the
business of the Guarantor and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (B)
obtain opinions of counsel to the Company and the Guarantor
satisfactory to the selling Holders and any underwriters of such
Registrable Notes and updates thereof addressed to each selling Holder
and underwriter of Registrable Notes, covering the matters customarily
covered in opinions requested in underwritten offerings, (C) obtain
"cold comfort" letters and updates thereof from the independent
certified public accountants of the Company and the Guarantor (and, if
necessary, any other certified public accountant of any subsidiary of
the Guarantor, or of any business acquired or to be acquired by the
Company or the Guarantor for which financial statements and financial
data is or is required to be included in the Registration Statement)
addressed to each selling Holder and underwriter of Registrable Notes,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and (D) deliver such documents and certificates
as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Notes being sold and the Special
Counsel to evidence the continued validity of the representations and
warranties of the Company and the Guarantor made pursuant to clause (A)
above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company or the Guarantor. The above shall be done at each
closing under such underwriting or similar agreement as and to the
extent required thereunder;
(ix) upon reasonable notice, make available for inspection by a
representative of the Holders of Registrable Notes, Special Counsel,
any underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney and accountant designated by
such selling Holders or underwriters, at reasonable times and in a
reasonable manner, all financial and other records, pertinent documents
and properties of the Guarantor and its subsidiaries and cause the
officers, directors and employees of the Guarantor and its subsidiaries
to supply all information reasonably requested by any such
representative, underwriter,
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attorney or accountant in connection with such disposition, in each
case that would customarily be reviewed or examined in connection with
a "due diligence" review of the Company and the Guarantor; and
(x) use its commercially reasonable efforts to cause all
Registrable Notes to be listed on any securities exchange or any
automated quotation system on which similar securities issued by the
Company are then listed if requested by the Holders of a majority in
aggregate principal amount, to the extent such Registrable Notes
satisfy applicable listing requirements.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes to furnish to the Company such information
regarding the Holder and the distribution of such Registrable Notes by such
Holder as the Company may from time to time reasonably request in writing. Each
Holder of Registrable Notes as to which any registration is being effected will
be required to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Holder to the Company
pursuant to Section 2 or of the happening of any event, in either case as a
result of which any Prospectus relating to such registration contains an untrue
statement of a material fact regarding such Holder or the distribution of such
Registrable Notes required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and to furnish to the Company promptly any additional
information required to correct and update any previously furnished information
or required such that such Prospectus shall not contain, with respect to such
Holder or the distribution of such Registrable Notes, an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any (i) notice from the Company or the Guarantor of the
happening of any event of the kind described in Section 3(b)(i)(f) or 3(b)(i)(g)
hereof, (ii) notice from the Company or the Guarantor that it is in possession
of material information that has not been disclosed to the public and the
Company or the Guarantor reasonably deems it to be advisable not to disclose
such information in a registration statement or (iii) notice from the Company or
the Guarantor that it is in the process of a registered offering of securities
and the Company or the Guarantor reasonably deems it to be advisable to
temporarily discontinue disposition of Registrable Notes pursuant to the Shelf
Registration Statement (in each case, such notice being hereinafter referred to
as a "SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Registrable Notes pursuant
14
to any Shelf Registration Statement and shall not be entitled to the benefits
provided under Section 6 hereof with respect to any sales made by it in
contravention of this paragraph, until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 3(b)(vii) hereof
or a notice that any order suspending the effectiveness of the Shelf
Registration Statement has been withdrawn, or, in the case of (ii) or (iii)
above, until further notice from the Company and the Guarantor that disposition
of Registrable Notes may resume, provided that such further notice will be given
within 90 days of the Suspension Notice in the case of (ii) above and within 120
days of the Suspension Notice in the case of (iii) above, and provided further
that in the case of (ii) and (iii) above that any Suspension Notice must be
based upon a good faith determination of the Board of Directors of the Company
or the Guarantor that such Suspension Notice is necessary; and, if so directed
by the Company or the Guarantor, such Holder will deliver to the Company (at the
expense of the Company) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Notes current at the time of receipt of such notice. If the Company
or the Guarantor shall give any Suspension Notice relating to the disposition of
Registrable Notes pursuant to any Shelf Registration Statement, the Company
shall extend the period during which such Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such Notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions or received such Notice
that any order suspending dispositions of the Notes has been withdrawn.
Notwithstanding the foregoing, in the case of clauses (ii) or (iii) above,
neither the Company nor the Guarantor may deliver a Suspension Notice if a
period of 90 days in the case of (ii) above and 120 days in the case of (iii)
above has not elapsed since the termination of any prior period during which a
Suspension Notice was in effect.
SECTION 4. Participation of Broker-dealers in Exchange Offer.
(a) The Staff of the Commission has taken the position that any
broker-dealer that receives Exchange Notes for its own account in the Exchange
Offer in exchange for Notes that were acquired by such broker-dealer as a result
of market-making or other trading activities (a "PARTICIPATING BROKER-DEALER"),
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes.
Each of Company and the Guarantor understands that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
15
effect and the means by which Participating Broker-Dealers may resell the
Exchange Notes, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Notes owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Notes for their
own accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In the light of the above, notwithstanding the other provisions of
this Agreement, each of the Company and the Guarantor agrees that the provisions
of this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Purchaser or by one
or more Participating Broker-Dealers, in each case as provided in clause (ii)
below, in order to expedite or facilitate the disposition of any Exchange Notes
by Participating Broker-Dealers consistent with the positions of the Staff of
the Commission recited in Section 4(a) above; provided that:
(i) neither the Company nor the Guarantor shall be required to amend
or supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(b)(vii), for a
period exceeding 180 days after the last Exchange Date (as such period may
be extended pursuant to the last paragraph of Section 3 of this Agreement)
and Participating Broker-Dealers shall not be authorized by the Company or
the Guarantor to deliver and shall not deliver such Prospectus after such
period in connection with resales contemplated by this Section 4; and
(ii) in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration, the
Company and the Guarantor shall be obligated (A) to deal only with one
entity representing the Participating Broker-Dealers, which shall be
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation unless it elects not to
act as such representative, (B) to pay the fees and expense of only one
counsel representing the Participating Broker-Dealers, which shall be the
Special Counsel unless such counsel elects not to so act and (C) to cause
to be delivered only one, if any, "cold comfort" letter or set of letters,
as the case may be, with respect to the Prospectus in the form existing on
the last Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (i)
above.
SECTION 5. Registration Expenses.
16
The Company shall pay all fees and expenses incident to the performance of
or compliance with this Agreement by the Company including, without limitation,
(i) all Commission, stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualification of any of the Exchange Notes or Registrable Notes), (iii) all
expenses of any Persons acting on behalf of the Company and the Guarantor in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the
reasonable fees and disbursements of the Trustee (including the reasonable fees
and disbursements of its counsel), (vii) the fees and disbursements of counsel
for the Company and the Guarantor, the Special Counsel and of the independent
public accountants of the Company and the Guarantor, including the expenses of
any special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees of counsel to the underwriters or
the Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Notes by a Holder. In
the event the Company shall fail to pay any amounts owed pursuant to this
Section 5, the Guarantor shall pay such amounts.
SECTION 6. Indemnification and Contribution.
(a) Each of the Company and the Guarantor jointly and severally agrees to
indemnify and hold harmless (i) the Purchaser, (ii) each Holder, (iii) each
person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) the Purchaser or any Holder (such person
referred to in this clause (ii) as a "CONTROLLING PERSON"), and (iv) the
respective officers, directors, partners, employees, representatives and agents
of the Purchaser, any Holder or any controlling person (any person referred to
in clause (i), (ii) or (iii) may be referred to as an "INDEMNIFIED PERSON"), to
the fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including, without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Person) directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any
17
Registration Statement, or any amendment or supplement thereto, any preliminary
prospectus or the Prospectus (as amended and supplemented if the Company or the
Guarantor shall have furnished any amendments or supplements thereto), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities, judgments, actions or expenses are caused
by any such untrue statement or omission or alleged untrue statement or omission
that is made in reliance upon and in conformity with information relating to the
Purchaser or any Holder, as requested in writing to be included by any Holder
pursuant to Section 2, furnished in writing to the Company by the Purchaser or
any Holder expressly for use therein. The Company and the Guarantor also agree,
jointly and severally, to indemnify any underwriters of the Registrable Notes,
their officers and directors and each Person who controls such underwriters on
substantially the same basis as that of the indemnification of the Purchaser and
the Holders provided in this Section 6. The Company and the Guarantor shall
notify the Purchaser promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation
relating to the offering of the Senior Notes or this Agreement which involves
the Company or the Guarantor or any Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Indemnified Person based
upon any Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended and supplemented if the Company or the
Guarantor shall have furnished any amendments or supplements thereto), and with
respect to which indemnity may be sought against either the Company or the
Guarantor (each, an "INDEMNIFYING PARTY"), such Indemnified Person shall
promptly notify the Indemnifying Party in writing (provided, that the failure to
give such notice shall not relieve the Indemnifying Party of its obligations
pursuant to this Agreement unless the Indemnifying Party is materially
prejudiced thereby and had no knowledge of such action or proceeding) and such
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses. Such Indemnified Person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Indemnifying Party, (ii) the
Indemnifying Party shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and the Indemnifying Party and such
Indemnified Person shall have been advised by such counsel that there may be one
or more legal defenses available to
18
it which are different from or additional to those available to the Indemnifying
Party or to another Indemnified Party (in which case the Indemnifying Party
shall not have the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Indemnifying Party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than (i) one separate firm of attorneys (in addition to any local counsel)
for the Purchaser and all controlling persons, which firm shall be designated in
writing by ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, and (ii) one
separate firm of attorneys (in addition to any local counsel) for all such
Holders and controlling persons, which firm shall be designated by Holders of a
majority in aggregate principal amount of Registrable Notes, and that all such
fees and expenses shall be reimbursed as they are incurred). Such Indemnifying
Party shall be liable for any settlement of any such action effected with such
Indemnifying Party's prior written consent, which consent shall not be
unreasonably withheld, and such Indemnifying Party agrees to indemnify and hold
harmless any Indemnified Person from and against any loss, claim, damage,
liability or expense by reason of any settlement of any action effected with the
written consent of such Indemnifying Party. Notwithstanding the immediately
preceding sentence, if in any case where the fees and expenses of counsel are at
the expense of such Indemnifying Party and the Indemnified Person shall have
requested such Indemnifying Party to reimburse the Indemnified Person for such
fees and expenses of counsel as incurred, such Indemnifying Party agrees that it
shall be liable for any settlement of any action effected without its written
consent if (i) such settlement is entered into more than 30 business days after
the receipt by such Indemnifying Party of the aforesaid request, and (ii) such
Indemnifying Party shall have failed to reimburse the Indemnified Person in
accordance with such request for reimbursement prior to the date of such
settlement. Such Indemnifying Party shall not, without the prior written consent
of each Indemnified Person, settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Person is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all liability
arising out of such action, claim, litigation or proceeding.
(c) In connection with any Shelf Registration in which a Holder is
participating, the Holders agree severally and not jointly, to indemnify and
hold harmless the Purchaser and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and the respective officers, directors, partners, employees,
19
representatives and agents of the Purchaser and each of the Company and the
Guarantor, its directors, officers and any person controlling such person within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company and the
Guarantor to the Purchaser and each Holder set forth in Section 6(a) above, but
only with reference to information relating to such Holder furnished in writing
by or on behalf of such Holder, expressly for use in any Registration Statement
or any amendment thereof, any preliminary prospectus or the Prospectus (as
amended and supplemented if the Company or the Guarantor shall have furnished
any amendments or supplements thereto). In case any action shall be brought
against any of the Company, the Guarantor, any of their directors, any such
officers or any person controlling such person or the Purchaser, any of its
directors or any person controlling the Purchaser based on any Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended and supplemented if the Company or the Guarantor shall have
furnished any amendments or supplements thereto), and in respect of which
indemnity may be sought against any Holder, such Holder shall have the rights
and duties given to the Company and the Guarantor (except that if the Company,
the Guarantor or the Purchaser shall have assumed the defense thereof, such
Holder shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof but the fees and expenses of such counsel
shall be at such Holder's expense), and each of the Company, the Guarantor and
the Purchaser, their directors, any such officers and any person controlling
such persons shall have the rights and duties given to the Purchaser and the
Holders, by Section 6(b) hereof.
(d) The Purchaser agrees to indemnify and hold harmless each of the
Company and the Guarantor and any person, if any, controlling (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
the Company or the Guarantor, and the officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Company and the Guarantor to each of the
Indemnified Persons, but only with respect to claims and actions based on
information relating to the Purchaser furnished in writing by the Purchaser
expressly for use in any Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended and supplemented if the
Company or the Guarantor shall have furnished any amendments or supplements
thereto). In case any action shall be brought against the Company or the
Guarantor, or any of their directors, officers or persons controlling the
Company or the Guarantor, based on any Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended and
supplemented if the Company or the Guarantor shall have furnished any amendments
or supplements thereto), and in respect of which indemnity may be sought against
20
the Purchaser, the Purchaser shall have the rights and duties given to the
Company and the Guarantor (except that if the Company or the Guarantor shall
have assumed the defense thereof, the Purchaser shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof,
the fees and expenses of such counsel shall be at the expense of the Purchaser),
and the Company and the Guarantor, their directors, officers and any persons
controlling any such persons shall have the rights and duties given to the
Purchaser, by Section 6(b) hereof.
(e) If the indemnification provided for in this Section 6 is unavailable
to any Indemnified Person in respect of any losses, claims, damages,
liabilities, judgments or expenses referred to herein, then each Indemnifying
Party, in lieu of indemnifying such any Indemnified Person, shall contribute to
the amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages, liabilities, judgments and expenses in such proportion as is
appropriate to reflect the relative fault of the Company and the Guarantor, on
the one hand, and the Purchaser, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantor, on the one
hand, and the Purchaser, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Company and the Guarantor or by the Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(f) The Company, the Guarantor and the Purchaser agree that it would not
be just and equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation (even if the Purchaser and the Holders were
treated as one entity) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 6, neither the
Purchaser nor any Holder shall be required to contribute any amount in excess of
the amount by which the total price of the Registrable Notes sold by the
Purchaser or such Holder exceeds the amount of any damages which the Purchaser
or such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent
21
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 Holders' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective amount of
Registrable Notes of such Holder that were registered pursuant to a Registration
Statement and not joint. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Purchaser or any person controlling the Purchaser, any Holder or any person
controlling the Holder, or the Company, the Guarantor, their officers or
directors or any person controlling any such person, and (iii) the sale or
transfer of any Registrable Notes by any Holder.
SECTION 7. Selection of Underwriters.
The Holders of Registrable Notes covered by the Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an underwritten
offering. In any such underwritten offering, the investment banker or investment
bankers and manager or managers (the "UNDERWRITERS") that will administer the
offering will be selected by the Holders of a majority of the aggregate
principal amount of outstanding Registrable Notes included in such offering.
SECTION 8. Miscellaneous.
(a) REMEDIES. In the event of a breach by the Company or the Guarantor of
any of their obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Each of the Company and the Guarantor agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event
of any action for specific performance in respect of such breach, they shall
waive the defense that a remedy at law would be adequate.
22
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor the Guarantor has,
as of the date hereof, and shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the Holders in this Agreement. Each of the Company
and the Guarantor represents and warrants that the rights granted to the Holders
hereunder do not in any way conflict with the rights granted to the holders of
the Company's or the Guarantor's securities under any other agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company and the Guarantor have obtained the written consent of
Holders of a majority of the then outstanding aggregate principal amount of
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; provided, however, no amendment, modification or supplement,
waiver or consent with respect to the provisions of Section 6 hereof shall be
effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter which relates
exclusively to the rights of Holders whose securities are being sold pursuant to
a Registration Statement and which does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold by such Holders;
provided, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier or any courier guaranteeing overnight delivery:
(i) if to a Holder, in accordance with the notice provisions set
forth in the Indenture, with a copy to the Purchaser, initially at their
respective addresses as follows:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d); and
23
(ii) if to the Company, initially at its address as follows:
Terra Nova Insurance (UK) Holdings plc
Terra ▇▇▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Great Britain
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d); and
(iii) if to the Guarantor, initially at its address as follows:
Terra Nova (Bermuda) Holdings Ltd.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇▇
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d); and
(iv) if to Special Counsel, initially at its address as follows:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; two business days after
being deposited in the mail, postage prepaid, if mailed; the next business day
if timely delivered to an air courier guaranteeing overnight delivery; when
answered back, if telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
24
(e) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Registrable Notes. The Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company and/or the Guarantor, on the one hand, and the Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they deem such enforcement necessary or advisable to protect their rights
hereunder.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
(i) JURISDICTION. Each of the Company and the Guarantor has designated and
appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its
authorized agent (the "AUTHORIZED AGENT") upon which process may be served in
any legal suit, action or proceeding (a "PROCEEDING") based on or arising under
this Agreement, which may be instituted in any state or federal court sitting in
the City of New York by any Holder, and each of the Company and the Guarantor
expressly accepts and irrevocably submits to the jurisdiction of any such court
in respect of any such Proceeding. Such appointment shall be irrevocable unless
and until a successor authorized agent in the City or State of New York
reasonably acceptable to the Holders shall have been appointed by the Company or
the Guarantor, as applicable, such successor shall have accepted such
appointment and written notice thereof shall have been given to the Holders.
Each of the Company and the Guarantor represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to such party (mailed or delivered to such party
at such party's address set forth above) shall be deemed, in every respect,
valid and effective personal service of process upon such party in any such
Proceeding and each of the Company and the Guarantor irrevocably waives all
claim of error by reason of any such service. Each of the Company and the
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Guarantor irrevocably waives any objection which it may now or hereafter have to
the laying of venue in any federal or state court sitting in the City of New
York of any Proceeding based on or arising under this Agreement and irrevocably
waives any claim that any such Proceeding in any such court has been brought in
an inconvenient forum. Each of the Company and the Guarantor agrees that a final
judgment in any such Proceeding brought in any such court shall be conclusive
and binding upon it and may be enforced in any court having jurisdiction over
the Company or the Guarantor, as applicable, by a suit upon such judgment.
(j) PAYMENT CURRENCY. Any obligation of the parties to make payments
hereunder is in U.S. dollars (the "OBLIGATION CURRENCY") and such obligation
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in any currency other than the Obligation Currency or any
other realization in such other currency, whether as proceeds of set-off,
security, guarantee, distributions, or otherwise, except to the extent to which
such tender, recovery or realization shall result in the receipt by the party
which is to receive such payment of the full amount of the Obligation Currency
expressed to be payable hereunder. The party liable to make such payment agrees
to indemnify the party which is to receive such payment for the amount (if any)
by which such receipt shall fall short of the full amount of the Obligation
Currency expressed to be payable hereunder and the party which is to receive
such payment agrees to pay to the party liable to make such payment the amount
(if any) by which such receipt shall exceed the full amount of the Obligation
Currency, and, in each case, such obligation shall not be affected by judgment
being obtained for any other sums due under this Agreement. The parties agree
that the rate of exchange which shall be used to determine if such tender,
recovery or realization shall result in the receipt by the party which is to
receive such payment of the full amount of the Obligation Currency expressed to
be payable hereunder shall be the noon buying rate in New York City for cable
transfers in such foreign currency as certified for customs purposes by the
Federal Reserve Bank of New York for the business day preceding that on which
the judgment becomes a final judgment or, if such noon buying rate is not
available, the rate of exchange shall be the rate at which in accordance with
normal banking procedures ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
could purchase United States dollars with such foreign currency on the business
day preceding that on which the judgment becomes a final judgment.
(k) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
thereby, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the
same result
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as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
(l) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. Except as provided in the Purchase
Agreement, 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 Company with respect to the securities sold
pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TERRA NOVA INSURANCE (UK) HOLDINGS
PLC
By:___________________________________
Name:
Title:
TERRA NOVA (BERMUDA) HOLDINGS LTD.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇ LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:___________________________________
Name:
Title:
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