EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 9, 1998
By and Among
▇▇▇▇ CORP.
as Issuer
THE GUARANTORS
named herein
and
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
BT ALEX. ▇▇▇▇▇ INCORPORATED
and
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
as Initial Purchasers
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$100,000,000
10 1/4% SENIOR SUBORDINATED NOTES DUE 2008
TABLE OF CONTENTS
Page
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1. Definitions............................................................1
2. Exchange Offer.........................................................4
3. Shelf Registration.....................................................8
4. Additional Interest....................................................9
5. Registration Procedures...............................................11
6. Registration Expenses.................................................20
7. Indemnification.......................................................21
8. Rule 144 and 144A.....................................................24
9. Underwritten Registrations............................................25
10. Miscellaneous........................................................25
(a) No Inconsistent Agreements.................................25
(b) Adjustments Affecting Registrable Securities...............25
(c) Amendments and Waivers.....................................26
(d) Notices....................................................26
(e) Successors and Assigns.....................................28
(f) Counterparts...............................................28
(g) Headings...................................................28
(h) Governing Law..............................................28
(i) Severability...............................................29
(j) Securities Held by the Issuers or Their Affiliates.........29
(k) Third Party Beneficiaries..................................29
(l) Entire Agreement...........................................29
i
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is dated
as of December 9, 1998 by and among ▇▇▇▇ Corp., a Delaware corporation (the
"COMPANY"), the Guarantors named on the signature pages hereto (the "GUARANTORS"
and, together with the Company, the "ISSUERS") and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, BT Alex. ▇▇▇▇▇ Incorporated and Bear, ▇▇▇▇▇▇▇ & Co. Inc.
(the "INITIAL PURCHASERS").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of December 2, 1998, between the Company, the Guarantors and
the Initial Purchasers (the "PURCHASE AGREEMENT") that provides for the sale by
the Company to the Initial Purchasers of $100,000,000 aggregate principal amount
of the Company's 10 1/4% Senior Subordinated Notes due 2008 (thE "NOtes"). The
Notes will be guaranteed (the "GUARANTEES") on a senior basis by the Guarantors.
The Notes and the Guarantees together are herein referred to as the
"SECURITIES". In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation to purchase the
Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
ADDITIONAL INTEREST: See Section 4(a) hereof.
ADVICE: See the last paragraph of Section 5 hereof.
AGREEMENT: See the first introductory paragraph hereto.
APPLICABLE PERIOD: See Section 2(b) hereof.
CLOSING DATE: The Closing Date as defined in the Purchase
Agreement.
COMPANY: See the first introductory paragraph hereto.
EFFECTIVENESS DATE: The date that is 150 days after the
Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a) hereof.
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EVENT DATE: See Section 4(b) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
EXCHANGE OFFER: See Section 2(a) hereof.
EXCHANGE REGISTRATION STATEMENT: See Section 2(a) hereof.
EXCHANGE SECURITIES: See Section 2(a) hereof.
FILING DATE: Within 75 days after the Issue Date.
HOLDER: Any holder of a Registrable Security or Registrable
Securities.
INDEMNIFIED PERSON: See Section 7(c) hereof.
INDEMNIFYING PERSON: See Section 7(c) hereof.
INDENTURE: The Indenture, dated as of December 9, 1998 by and
among the Company, the Guarantors and State Street Bank and Trust Company, as
trustee, pursuant to which the Securities are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
INITIAL PURCHASERS: See the first introductory paragraph
hereto.
INSPECTORS: See Section 5(o) hereof.
ISSUE DATE: The date on which the original Securities were
sold to the Initial Purchasers pursuant to the Purchase Agreement.
ISSUERS: See the introductory paragraph hereto.
NASD: See Section 5(s) hereof.
NOTES: See the second introductory paragraph hereto.
PARTICIPANT: See Section 7(a) hereof.
PARTICIPATING BROKER-DEALER: See Section 2(b) hereof.
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PERSON: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
PRIVATE EXCHANGE: See Section 2(b) hereof.
PRIVATE EXCHANGE SECURITIES: See Section 2(b) hereof.
PROSPECTUS: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the second introductory paragraph
hereto.
RECORDS: See Section 5(o) hereof.
REGISTRABLE SECURITIES: Each Security upon original issuance
of the Securities and at all times subsequent thereto, each Exchange Security as
to which Section 2(c)(v) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Security upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Security, Exchange Security or Private Exchange Security, as the case may
be, the earliest to occur of (i) a Registration Statement (other than, with
respect to any Exchange Security as to which Section 2(c)(v) hereof is
applicable, the Exchange Registration Statement) covering such Security,
Exchange Security or Private Exchange Security, as the case may be, has been
declared effective by the SEC and such Security, Exchange Security or Private
Exchange Security, as the case may be, has been disposed of in accordance with
such effective Registration Statement, (ii) such Security, Exchange Security or
Private Exchange Security, as the case may be, is sold in compliance with Rule
144, (iii) such Security has been exchanged for an Exchange Security or Exchange
Securities pursuant to an Exchange Offer and is entitled to be resold without
complying with the prospectus delivery requirements of the Securities Act or
(iv) such Security, Exchange Security or Private Exchange Security, as the case
may be, ceases to be outstanding for purposes of the Indenture.
REGISTRATION STATEMENT: Any registration statement of the
Company, including, but not limited to, the Exchange Registration Statement and
any registration statement filed in
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connection with a Shelf Registration, filed with the SEC pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: See the second introductory paragraph hereto.
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(c) hereof.
SHELF REGISTRATION: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent,
the trustee under any indenture governing the Exchange Securities and Private
Exchange Securities (if any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. EXCHANGE OFFER
(a) The Company and the Guarantors shall file with the SEC no later than
the Filing Date an offer to exchange (the "EXCHANGE OFFER") any and all
of the Registrable Securities (other than the
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Private Exchange Securities, if any) for a like aggregate principal
amount of debt securities of the Company that are identical in all
material respects to the Securities (the "EXCHANGE SECURITIES") (and
that are entitled to the benefits of the Indenture or a trust indenture
that is identical in all material respects to the Indenture (other than
such changes to the Indenture or any such identical trust indenture as
are necessary to comply with any requirements of the SEC to effect or
maintain the qualification thereof under the TIA) and that, in either
case, has been qualified under the TIA), except that the Exchange
Securities (other than Private Exchange Securities, if any) shall have
been registered pursuant to an effective Registration Statement under
the Securities Act and shall contain no restrictive legend thereon. The
Exchange Offer shall be registered under the Securities Act on the
appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and shall
comply with all applicable tender offer rules and regulations under the
Exchange Act. The Company and the Guarantors agree to use their
respective reasonable best efforts to (x) cause the Exchange
Registration Statement to be declared effective under the Securities
Act on or before the Effectiveness Date; (y) keep the Exchange Offer
open for at least 20 business days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 190th
day following the Issue Date. If after such Exchange Registration
Statement is declared effective by the SEC, the Exchange Offer or the
issuance of the Exchange Securities thereunder is interfered with by
any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Exchange Registration
Statement shall be deemed not to have become effective for purposes of
this Agreement. Each Holder who participates in the Exchange Offer will
be required to represent in writing that any Exchange Securities
received by it will be acquired in the ordinary course of its business,
that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities in violation
of the provisions of the Securities Act and that such Holder is not an
affiliate of the Company or the Guarantors within the meaning of the
Securities Act and is not acting on behalf of any persons or entities
who could not truthfully make the foregoing representations. Upon
consummation of the Exchange Offer in accordance with this Section 2,
the provisions of this Agreement shall continue to apply, MUTATIS
MUTANDIS, solely with respect to Registrable Securities that are
Private Exchange Securities and Exchange Securities held by
Participating Broker-Dealers, and the Company shall have no further
obligation to register Registrable Securities (other than Private
Exchange Securities and other than in respect of any Exchange
Securities as to which clause 2(c)(v) hereof applies) pursuant to
Section 3 hereof. No securities other than the Exchange Securities
shall be included in the Exchange Registration Statement.
(b) The Company and the Guarantors shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial
Purchasers, that shall contain a summary statement of the positions
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taken or policies made by the Staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities received by such broker-dealer in the Exchange
Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or
such positions or policies, in the judgment of the Initial Purchasers,
represent the prevailing views of the Staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit the use of the
Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Securities.
The Company and the Guarantors shall use their respective
reasonable best efforts to keep the Exchange Registration Statement effective
and to amend and supplement the Prospectus contained therein in order to permit
such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as is necessary to comply with applicable law in connection with any resale of
the Exchange Securities; PROVIDED, HOWEVER, that such period shall not exceed
270 days after the consummation of the Exchange Offer (or such longer period if
extended pursuant to the last paragraph of Section 5 hereof) (the "APPLICABLE
PERIOD").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, the Issuers, upon the request of the Initial
Purchasers simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "PRIVATE EXCHANGE") for such Securities held by the Initial Purchasers a
like principal amount of debt securities of the Issuers that are identical in
all material respects to the Exchange Securities(the "PRIVATE EXCHANGE
SECURITIES") (and that are issued pursuant to the same indenture as the Exchange
Securities), except for the placement of a restrictive legend on such Private
Exchange Securities. The Private Exchange Securities shall bear the same CUSIP
number as the Exchange Securities.
Interest on the Exchange Securities and the Private Exchange
Securities will accrue from the last interest payment date on which interest was
paid on the Securities surrendered in exchange therefor or, if no interest has
been paid on the Securities, from the Issue Date.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
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(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company and the Guarantors
shall:
(1) accept for exchange all Securities properly tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the
Securities of such Holder so accepted for exchange.
The Exchange Securities and the Private Exchange Securities
may be issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture, which in either event shall provide that (1)
the Exchange Securities shall not be subject to the transfer restrictions set
forth in the Indenture and (2) the Private Exchange Securities shall be subject
to the transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Securities, the Private Exchange
Securities and the Notes shall vote and consent together on all matters as one
class and that neither the Exchange Securities, the Private Exchange Securities
or the Securities will have the right to vote or consent as a separate class on
any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Issuers are not permitted
to effect an Exchange Offer, (ii) the Exchange Offer is not consummated
within 190 days of the Issue Date, (iii) the holder of Private Exchange
Securities so requests at any time after the consummation of the
Private Exchange, (iv) the Holders of not less than a majority in
aggregate principal amount of the Registrable Securities
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determine that the interests of the Holders would be materially
adversely affected by consummation of the Exchange Offer or (v) in the
case of any Holder that participates in the Exchange Offer, such Holder
does not receive Exchange Securities on the date of the exchange that
may be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of
the Company or any of the Guarantors within the meaning of the
Securities Act), then the Company shall promptly deliver written notice
thereof (the "SHELF NOTICE") to the Trustee and in the case of clauses
(i), (ii) and (iv), all Holders, in the case of clause (iii), the
Holders of the Private Exchange Securities and in the case of clause
(v), the affected Holder, and shall file a Shelf Registration pursuant
to Section 3 hereof.
3. SHELF REGISTRATION
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) SHELF REGISTRATION. The Company and the Guarantors shall as promptly as
reasonably practicable file with the SEC a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Securities (the "SHELF REGISTRATION").
If the Company and the Guarantors shall not have yet filed an Exchange
Registration Statement, the Company and the Guarantors shall use their
respective reasonable best efforts to file with the SEC the Shelf
Registration on or prior to the Filing Date. The Shelf Registration
shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Securities for resale by Holders in
the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company and the
Guarantors shall not permit any securities other than the Registrable
Securities to be included in the Shelf Registration.
The Company and the Guarantors shall use their respective
reasonable best efforts to cause the Shelf Registration to be declared effective
under the Securities Act on or prior to the Effectiveness Date and to keep the
Shelf Registration continuously effective under the Securities Act until the
date that is two years from the Issue Date (the "EFFECTIVENESS PERIOD"), or such
shorter period ending when all Registrable Securities covered by the Shelf
Registration have been sold in the manner set forth and as contemplated in the
Shelf Registration.
(b) WITHDRAWAL OF STOP ORDERS. If the Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Company and the Guarantors shall use their respective
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof.
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(c) SUPPLEMENTS AND AMENDMENTS. The Company and the Guarantors shall
promptly supplement and amend the Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form
used for such Shelf Registration, if required by the Securities Act, or
if reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such
Registration Statement or by any underwriter of such Registrable
Securities.
4. ADDITIONAL INTEREST
(a) The Company, the Guarantors and the Initial Purchasers agree that the
Holders of Registrable Securities will suffer damages if the Company
and the Guarantors fail to fulfill their respective obligations under
Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the
Company and the Guarantors agree to pay, as liquidated damages,
additional interest on the Securities("ADDITIONAL INTEREST") under the
circumstances and to the extent set forth below (without duplication):
(i) if (A) neither the Exchange Registration Statement nor the
Shelf Registration has been filed on or prior to the Filing
Date or (B) notwithstanding that the Company and the
Guarantors have consummated or will consummate an Exchange
Offer, the Company and the Guarantors are required to file a
Shelf Registration and such Shelf Registration is not filed on
or prior to the date required by Section 3 of this Agreement,
Additional Interest shall accrue on the Securities over and
above the stated interest at a rate of 0.50% per annum for the
first 90 days immediately following the Filing Date, such
Additional Interest rate increasing by an additional 0.50% per
annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Registration Statement nor
the Initial Shelf Registration is declared effective by the
SEC on or prior to the Effectiveness Date or (B)
notwithstanding that the Company and the Guarantors have
consummated or will consummate an Exchange Offer, the Company
and the Guarantors are required to file a Shelf Registration
and such Shelf Registration is not declared effective by the
Commission on or prior to the 60th day following the date such
Shelf Registration was filed, then, commencing on the 61st day
after the applicable filing date, Additional Interest shall be
accrued on the Securities included or that should have been
included in such Registration Statement over and above the
stated interest at a rate of 0.50% per annum for the first 90
days immediately following such date, such Additional Interest
rate increasing by an additional 0.50% per annum at the
beginning of each subsequent 90-day period; and
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(iii) if either (A) the Company and the Guarantors have not
exchanged Exchange Securities for all Securities validly
tendered in accordance with the terms of the Exchange Offer on
or prior to the 75th day after the date on which the Exchange
Registration Statement was declared effective or (B) the
Exchange Registration Statement ceases to be effective at any
time prior to the time that the Exchange Offer is consummated
or (C) if applicable, the Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective
at any time during the Effectiveness Period (other than after
such time as all Securities have been disposed of thereunder),
then Additional Interest shall be accrued on the Securities
(over and above any interest otherwise payable on the
Securities) at a rate of 0.50% per annum on (x) the 76th day
after such effective date, in the case of (A) above, or (y)
the day the Exchange Registration Statement ceases to be
effective without being declared effective within five
business days in the case of (B) above, or (z) the day such
Shelf Registration ceases to be effective, in the case of (C)
above, such Additional Interest rate increasing by an
additional 0.50% per annum at the beginning of each such
subsequent 90-day period (it being understood and agreed that,
notwithstanding any provision to the contrary, so long as any
Security that is the subject of a Shelf Notice is then covered
by an effective Shelf Registration Statement, no Additional
Interest shall accrue on such Security);
PROVIDED, HOWEVER, that the Additional Interest rate on any affected Security
may not exceed at any one time in the aggregate 2.0% per annum; and PROVIDED,
FURTHER, that (1) upon the filing of the Exchange Registration Statement or a
Shelf Registration (in the case of clause (i) of this Section 4(a)), (2) upon
the effectiveness of the Exchange Registration Statement or the Shelf
Registration (in the case of clause (ii) of this Section 4(a)), or (3) upon the
exchange of Exchange Securities for all Securities tendered (in the case of
clause (iii)(A) of this Section 4(a)), or upon the effectiveness of the Exchange
Registration Statement that had ceased to remain effective (in the case of
(iii)(B) of this Section 4(a)) or upon the effectiveness of the Shelf
Registration that had ceased to remain effective (in the case of (iii)(C) of
this Section 4(a)), Additional Interest on the affected Securities as a result
of such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.
(b) The Company and the Guarantors shall notify the Trustee within one
business day after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "EVENT
DATE"). Any amounts of Additional Interest due pursuant to (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash on the
same original interest payment dates as the Notes, commencing with the
first such date occurring after any such Additional Interest commences
to accrue. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal
amount of the Registrable Securities, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate
was applicable during such period (determined on the basis of a 360-day
year
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consisting of twelve 30-day months and, in the case of a partial month,
the actual number of days elapsed) and the denominator of which is 360.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company and the Guarantors hereunder, the Company and the Guarantors shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use its reasonable best efforts to cause
each such Registration Statement to become effective and remain
effective as provided herein; PROVIDED, HOWEVER, that, if (1) such
filing is pursuant to Section 3 hereof or (2) a Prospectus contained in
an Exchange Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Company and
the Guarantors shall furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to
be filed (in each case at least three business days prior to such
filing). The Company and the Guarantors shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the
Holders of a majority in aggregate principal amount of the Registrable
Securities covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, or their counsel, or
the managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to it
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with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any
such Prospectus; the Company and the Guarantors shall be deemed not to
have used their respective reasonable best efforts to keep a
Registration Statement effective during the Applicable Period if each
of the Company and the Guarantors voluntarily takes any action that
would result in selling Holders of the Registrable Securities covered
thereby or Participating Broker-Dealers seeking to sell Exchange
Securities not being able to sell such Registrable Securities or such
Exchange Securities during that period, unless such action is required
by applicable law or unless the Company and the Guarantors comply with
this Agreement, including without limitation, the provisions of
paragraph 5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
notify the selling Holders of Registrable Securities, or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, promptly (but in any event within two
business days) and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuers,
one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of
any proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Securities or resales of
Exchange Securities by Participating Broker-Dealers the representations
and warranties of the Issuers contained in any agreement (including any
underwriting agreement), contemplated by Section 5(n) hereof cease to
be true and correct, (iv) of the receipt by the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or written threat of any proceeding for such purpose,
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(v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respects or that requires the making of any changes in
or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (vi) of
the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use their respective reasonable best efforts to prevent
the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Securities or the Exchange
Securities for sale in any jurisdiction and, if any such order is
issued, to use their reasonable best efforts to obtain the withdrawal
of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters, if any, or
the Holders of a majority in aggregate principal amount of the
Registrable Securities being sold in connection with an underwritten
offering, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter
or underwriters, if any, such Holders or counsel for any of them
determine is reasonably necessary to be included therein, (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment and (iii) supplement or make
amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
furnish to each selling Holder of Registrable Securities and to each
such Participating Broker-Dealer who so requests and to their
respective counsel and each managing underwriter, if any, at the sole
expense of the Issuers, one conformed copy of the
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Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
deliver to each selling Holder of Registrable Securities, or each such
Participating Broker-Dealer, as the case may be, their respective
counsel and the underwriters, if any, at the sole expense of the
Issuers, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Company and the Guarantors hereby consent to the
use of such Prospectus and each amendment or supplement thereto by each
of the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers, if any, in connection with the offering
and sale of the Registrable Securities covered by, or the sale by
Participating Broker-Dealers of the Exchange Securities pursuant to,
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or
Exchange Securities or any delivery of a Prospectus contained in the
Exchange Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, to use
their reasonable best efforts to register or qualify and to cooperate
with the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer or the managing underwriter or underwriters
reasonably request in writing; PROVIDED, HOWEVER, that where Exchange
Securities held by Participating Broker-Dealers or Registrable
Securities are offered other than through an underwritten offering, the
Company and the Guarantors agree to cause their counsel to perform Blue
Sky investigations and file registrations and qualifications required
to be filed pursuant to this Section 5(h); use their reasonable best
efforts to keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the
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Exchange Securities held by Participating Broker-Dealers or the
Registrable Securities covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that none of the Company or the
Guarantors shall be required to (A) qualify generally to do business in
any jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company; and enable such Registrable
Securities to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may
reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the Holders thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a consequence of the
nature of such selling Holder's business, in which case the Company and
the Guarantors will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi), hereof, as promptly as practicable prepare and (subject to
Section 5(a) hereof) file with the SEC, at the Issuers' sole expense, a
supplement or post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder or to the purchasers
of the Exchange Securities to whom such Prospectus will be delivered by
a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
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(l) Use their respective reasonable best efforts to cause the
Registrable Securities covered by a Registration Statement or the
Exchange Securities, as the case may be, to be rated with the
appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement or the Exchange Securities, as
the case may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the
Trustee with certificates for the Registrable Securities or Exchange
Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities or Exchange Securities, as the case may be.
(n) In connection with any underwritten offering of
Registrable Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Securities and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Securities and, in such connection, (i)
make such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers and their
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Securities,
and confirm the same in writing if and when requested; (ii) obtain the
written opinion of counsel to the Issuers and written updates thereof
in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten
offerings of debt similar to the Securities and such other matters as
may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof
in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuers or of any
business acquired by the Issuers for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings of debt securities similar to the
Securities and such other matters as reasonably requested by the
managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall
-16-
contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Securities covered by such Registration Statement
and the managing underwriter or underwriters or agents) with respect to
all parties to be indemnified pursuant to said Section. The above shall
be done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
upon reasonable advance notice make available for inspection by any
selling Holder of such Registrable Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securities, if
any, and any attorney, accountant or other agent retained by any such
selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "INSPECTORS"), at the offices
where normally kept, during reasonable business hours without
interfering in the orderly business of the Company or Guarantors, all
financial and other records, pertinent corporate documents and
instruments of the Issuers and their subsidiaries (collectively, the
"RECORDS") as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the respective
officers, directors and employees of the Issuers and their subsidiaries
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Issuers
determine, in good faith, to be confidential and any Records that they
notify the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) after giving reasonable prior notice to the
Company, disclosure of such information is, in the opinion of counsel
for any Inspector, necessary or advisable in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
relating to or involving this Agreement or any transactions
contemplated hereby or arising hereunder or (iv) the information in
such Records has been made generally available to the public. Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such
information
-17-
is generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
be required to further agree that it will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company to
undertake appropriate action to prevent disclosure of the Records
deemed confidential at the Issuers' sole expense.
(p) Provide an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause
the Indenture or the trust indenture provided for in Section 2(a)
hereof, as the case may be, to be qualified under the TIA not later
than the effective date of the Exchange Offer or the first Registration
Statement relating to the Registrable Securities; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Securities, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its
reasonable best efforts to cause such trustee to execute, all documents
as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable such indenture to
be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) 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) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
commitment or reasonable best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Issuers after the effective date
of a Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers, who may, at the
Issuer's election, be internal counsel to the Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Securities participating in
the Exchange Offer or the Private Exchange, as the case may be, that
the Exchange Securities or Private Exchange Securities, as the case may
be, and the related indenture constitute legal, valid and binding
obligations of the Issuers, enforceable against the Issuers in
accordance with its respective terms, subject to customary exceptions
and qualifications.
-18-
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall ▇▇▇▇, or cause to be
marked, on such Registrable Securities that such Registrable Securities
are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD").
(u) Use their respective reasonable best efforts to take all
other steps necessary or advisable to effect the registration of the
Registrable Securities covered by a Registration Statement contemplated
hereby.
The Company and the Guarantors may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company and the Guarantors such information regarding such seller and the
distribution of such Registrable Securities as the Company and the Guarantors
may, from time to time, reasonably request. The Company and the Guarantors may
exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request and in such event shall have no further obligation under
this Agreement (including, without limitation, obligations under Section 4
hereof) with respect to such seller or any subsequent holder of such Registrable
Securities. Each seller as to which any Shelf Registration is being effected
agrees to furnish promptly to the Company and the Guarantors all information
required to be disclosed in order to make the information previously furnished
to the Company and the Guarantors by such seller not materially misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon actual receipt of any notice from the Company of the happening of any
event of the kind described in Sections 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus or Exchange
Securities to be sold by such Holder or Participating Broker-Dealer, as the case
may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or
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amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "ADVICE") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Company shall give any such notice,
each of the Effectiveness Period and the Applicable Period shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement or Exchange Securities to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice; PROVIDED, HOWEVER, that the
Effectiveness Period shall not be extended for a period longer than two years
from the Issue Date.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Company and the Guarantors shall be borne by the
Company and the Guarantors whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without
limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable
Securities or Exchange Securities and determination of the eligibility
of the Registrable Securities or Exchange Securities for investment
under the laws of such jurisdictions (x) where the holders of
Registrable Securities are located, in the case of the Exchange
Securities, or (y) as provided in Section 5(h) hereof, in the case of
Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, including, without limitation, expenses of printing
certificates for Registrable Securities or Exchange Securities in a
form eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is requested by
the managing underwriter or underwriters, if any, by the Holders of a
majority in aggregate principal amount of the Registrable Securities
included in any Registration Statement or sold by any Participating
Broker-Dealer, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the
Company and fees and disbursements of special counsel for the sellers
of Registrable Securities(subject to the provisions of Section 6(b)
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), (vi) rating
agency fees, if any, and any fees associated with making the
Registrable Securities or Exchange Securities eligible for trading
through the Depository Trust Company, (vii) Securities Act liability
insurance, if the Company desires such insurance, (viii) fees and
expenses of all other Persons
-20-
retained by the Company, (ix) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers
and employees of the Company performing legal or accounting duties),
(x) the expense of any annual audit, (xi) the fees and expenses
incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (xii) the
expenses relating to printing, word processing and distributing of all
Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary to comply with
this Agreement.
(b) The Company and the Guarantors shall (i) reimburse the Holders of the
Registrable Securities being registered in a Shelf Registration for the
reasonable fees and disbursements of not more than one counsel chosen
by the Holders of a majority in aggregate principal amount of the
Registrable Securities to be included in such Registration Statement
and (ii) reimburse reasonable out-of-pocket expenses (other than legal
expenses) of Holders of Registrable Securities incurred in connection
with the registration and sale of the Registrable Securities pursuant
to a Shelf Registration or in connection with the exchange of
Registrable Securities pursuant to the Exchange Offer.
7. INDEMNIFICATION
(a) Each of the Company and the Guarantors agrees to indemnify and hold
harmless each Holder of Registrable Securities offered pursuant to a
Shelf Registration Statement and each Participating Broker-Dealer
selling Exchange Securities during the Applicable Period, the officers
and directors of each such Person or its affiliates, and each other
Person, if any, who controls any such Person or its affiliates within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (each, a "PARTICIPANT"), from and against any and all
losses, claims, damages and liabilities (including, without limitation,
the reasonable legal fees and other expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted)
caused by, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Registrable Securities
or Exchange Securities, as the case may be, is registered (or any
amendment thereto) or related Prospectus (or any amendments or
supplements thereto) or any related preliminary prospectus, or caused
by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that none of the Company or the Guarantors will be required to
indemnify a Participant if (i) such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information relating to any Participant furnished to the Company
in writing by or on behalf of such Participant expressly for use
therein or (ii) if such Participant sold to the person asserting the
claim the Registrable Notes or Exchange Securities that are the subject
of such claim and
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such untrue statement or omission or alleged untrue statement or
omission was contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement thereto and
the Prospectus does not contain any other untrue statement or omission
or alleged untrue statement or omission of a material fact that was the
subject matter of the related proceeding and it is established by the
Company in the related proceeding that such Participant failed to
deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the
sale of such Registrable Notes or Exchange Notes sold to such Person if
required by applicable law, unless such failure to deliver or provide a
copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Company and each of the Guarantors, the Company's
directors and officers, each Guarantor's directors and officers and
each Person who controls the Company and the Guarantors within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the
Company to each Participant, but only (i) with reference to information
relating to such Participant furnished to the Company in writing by or
on behalf of such Participant expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto or any
preliminary prospectus or (ii) with respect to any untrue statement or
representation made by such Participant in writing to the Company. The
liability of any Participant under this paragraph shall in no event
exceed the proceeds received by such Participant from sales of
Registrable Securities or Exchange Securities giving rise to such
obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the
"INDEMNIFIED PERSON") shall promptly notify the Person against whom
such indemnity may be sought (the "INDEMNIFYING PERSON") in writing,
and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person
to represent the Indemnified Person and any others the Indemnifying
Person may reasonably designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel related
to such proceeding; PROVIDED, HOWEVER, that the failure to so notify
the Indemnifying Person shall not relieve it of any obligation or
liability that it may have hereunder or otherwise (unless and only to
the extent that such failure directly results in the loss or compromise
of any material rights or defenses by the Indemnifying Person and the
Indemnifying Person was not otherwise aware of such action or claim).
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Person shall
have failed within a reasonable period of time to
-22-
retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection
with any one such proceeding or separate but substantially similar
related proceeding in the same jurisdiction arising out of the same
general allegations, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be
reimbursed promptly as they are incurred. Any such separate firm for
the Participants and such control Persons of Participants shall be
designated in writing by Participants who sold a majority in interest
of Registrable Securities and Exchange Securities sold by all such
Participants and any such separate firm for the Company, its directors,
its officers and such control Persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its
prior written consent, but if settled with such consent or if there be
a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this
Agreement, the Indemnifying Person agrees to indemnify and hold
harmless each Indemnified Person from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for reasonable
fees and expenses actually incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that
it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement; PROVIDED, HOWEVER, that the Indemnifying Person shall
not be liable for any settlement effected without its consent pursuant
to this sentence if the Indemnifying Person is contesting, in good
faith, the request for reimbursement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement or compromise of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party,
and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include
any statement as to an admission of fault, culpability or failure to
act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second paragraphs
of this Section 7 is for any reason unavailable to, or insufficient to
hold harmless, an Indemnified Person in respect
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of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraphs, in lieu of indemnifying
such Indemnified Person thereunder and in order to provide for just and
equitable contribution, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Person or Persons on the one hand
and the Indemnified Person or Persons on the other in connection with
the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuers
on the one hand or such Participant or such other Indemnified Person,
as the case may be, on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations
appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by PRO RATA
allocation (even if the Participants were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the
amount by which proceeds received by such Participant from sales of
Registrable Securities or Exchange Securities, as the case may be,
exceeds the amount of any damages that such Participant has otherwise
been required to pay or has paid by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability that the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULE 144 AND 144A
The Company and the Guarantors covenant that they will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder in a timely
manner in accordance with the
-24-
requirements of the Securities Act and the Exchange Act and, if at any time the
Company and the Guarantors not required to file such reports, they will, upon
the request of any Holder of Registrable Securities, make publicly available
annual reports and such information, documents and other reports of the type
specified in Sections 13 and 15(d) of the Exchange Act. The Company and the
Guarantors further covenant for so long as any Registrable Securities remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Securities in connection with any sale thereof and any prospective purchaser of
such Registrable Securities from such Holder or beneficial owner the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Registrable Securities pursuant to Rule 144A.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Securities included in such offering and reasonably acceptable to
the Company and the Guarantors.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not entered into, as of
the date hereof, and shall not, after the date of this Agreement, enter
into any agreement with respect to any of the Company's securities that
is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions
hereof. Except for registration rights agreements with GECFS, Inc.,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Mas, ▇▇▇▇ ▇▇▇▇▇ Mas, ▇▇▇▇ ▇▇▇▇▇▇ Mas and
▇▇▇▇▇▇ Capital Advisors, Inc. and ▇▇▇▇▇▇ Fund I L.P., the Issuers have
not entered and will not enter into any agreement with respect to any
of the Company's securities that will grant to any Person piggy-back
registration rights with respect to a Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect
-25-
the ability of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this
Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than
with the prior written consent of the Holders of not less than a
majority in aggregate principal amount of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; PROVIDED, HOWEVER,
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) NOTICES. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Securities or
any Participating Broker-Dealer, at the most current address
of such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the
Indenture, with a copy in like manner to the Initial
Purchasers as follows:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
BT ALEX. ▇▇▇▇▇ INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:
Attention: Syndicate Department
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with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
2. if to the Initial Purchasers, at the addresses
specified in Section 10(d)(1)
3.
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4. if to the Issuer, at the address as follows:
▇▇▇▇ CORP.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties
hereto; PROVIDED, HOWEVER, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless
and to the extent such successor or assign holds Registrable
Securities.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
-28-
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
(i) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable best efforts to find
and employ an alternative means to achieve the same or substantially
the same result as that contemplated by such term, provision, covenant
or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) SECURITIES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Issuers or their affiliates (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
(k) THIRD PARTY BENEFICIARIES. Holders of Registrable Securities and
Participating Broker-Dealers are intended third party beneficiaries of
this Agreement and this Agreement may be enforced by such Persons.
(l) ENTIRE AGREEMENT. This Agreement, together with the Purchase Agreement
and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and
all prior oral or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and memoranda
between the Initial Purchasers on the one hand and the Issuers on the
other, or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
▇▇▇▇ CORP.
By: ________________________________________
Name:
Title:
▇▇▇▇ RENTAL INC.
By: ________________________________________
Name:
Title:
▇▇▇▇ MACHINERY INC.
By: ________________________________________
Name:
Title:
AIR RENTAL & SUPPLY, INC.
By: ________________________________________
Name:
Title:
▇▇▇▇ ASSET MANAGEMENT, INC.
By: ________________________________________
Name:
Title:
S-1
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: ________________________________________
Name:
Title:
BT ALEX. ▇▇▇▇▇ INCORPORATED
By: ________________________________________
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: ________________________________________
Name:
Title:
S-2