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EXHIBIT 10.8
________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
Dated as of November 12, 1997
by and among
TRANSWESTERN HOLDINGS L.P.
and
TWP CAPITAL CORP.
and
THE INITIAL PURCHASERS
named herein
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TABLE OF CONTENTS
Page
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Damage Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8. Rules 144 and 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9. Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(a) Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(b) Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(c) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(d) Adjustments Affecting Registrable Notes . . . . . . . . . . . . . . . . . . . . . . 30
(e) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(f) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(g) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(h) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(i) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
(j) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(k) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(l) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(m) Joint and Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(n) Notes Held by the Issuers or Their Affiliates . . . . . . . . . . . . . . . . . . . ▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇ RIGHTS AGREEMENT (the "Agreement") dated as of
November 12, 1997, by and among TRANSWESTERN HOLDINGS L.P., a Delaware limited
partnership formerly known as TransWestern Publishing Company, L.P.
("Holdings"), TWP CAPITAL CORP., a Delaware corporation ("Capital" and,
together withHoldings, the "Issuers"), and CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP. ("CIBC") and
FIRST UNION CAPITAL MARKETS CORP., as initial purchasers (the "Initial
Purchasers").
This Agreement is entered into in connection with the
Securities Purchase Agreement, dated as of November 6, 1997 among the Issuers,
TransWestern Publishing Company LLC and TransWestern Communications, Inc. and
the Initial Purchasers (the "Purchase Agreement") relating to the sale by the
Issuers to the Initial Purchasers of $32,500,000 initial principal amount of
the Issuers' 11 7/8% Senior Discount Notes due 2008 (the "Notes"). 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 to
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 Notes 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:
Accreted Value: means, as of any date prior to November 15,
2002, an amount per $1,000 principal amount at maturity of Notes that is equal
to the sum of (a) $561.16 and (b) the portion of the excess of the principal
amount at maturity of each Note over $561.16 which shall have been amortized on
a daily basis and compounded semiannually on each May 15 and November 15 at the
rate of 11 7/8% per annum from the Issue Date through the date of determination
computed on the basis of a 360-day year of twelve 30-day months; and, as of any
date on or after November 15, 2002, the Accreted Value of each Note shall mean
the aggregate principal amount at maturity of such Note.
Advice: See Section 5.
Applicable Period: See Section 2(b).
Capital: See the introductory paragraph to this Agreement.
Closing: See the Purchase Agreement.
Consummation Date: The 180th day after the Issue Date.
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▇▇▇▇▇▇ ▇▇▇▇▇▇: See Section 4(a).
Effectiveness Date: The 135th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 45th day after the Issue Date.
Holder: Any holder of a Registrable Note or Registrable
Notes.
Holdings: See the introductory paragraph to this Agreement.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of November 12, 1997,
among the Issuers and Wilmington Trust Company, as trustee, pursuant to which
the Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes are sold to
the Initial Purchasers pursuant to the Purchase Agreement.
Issuers: See the introductory paragraph to this Agreement.
NASD: See Section 5(t).
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Notes: See the introductory paragraph to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
PIK Notes: Any Notes issued as payment in kind in lieu of
interest payments in cash to a holder of the Notes.
Person: An individual, corporation, limited liability
Company, partnership, joint venture, association, joint stock Company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
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, with respect to the terms of the
offering of any portion of the Registrable Notes covered by such Registration
Statement, 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 in such Prospectus.
Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 5(o).
Registrable Notes: The Notes and PIK Notes upon original
issuance of the Notes and PIK Notes and at all times subsequent thereto and, if
issued, the Private Exchange Notes, until in the case of any such Notes, PIK
Notes or any such Private Exchange Notes, as the case may be, (i) a
Registration Statement covering such Notes, PIK Notes or such Private Exchange
Notes has been declared effective by the SEC and such Notes, PIK Notes or such
Private Exchange Notes, as the case may be, have been exchanged and/or disposed
of in accordance with such effective Registration Statement, (ii) such Notes,
PIK Notes or such Private Exchange Notes, as the case may be, are sold in
compliance with Rule 144, (iii) in the case of any Note, such Note has been
exchanged for an Exchange Note or Exchange Notes pursuant to an Exchange Offer
or (iv) such
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Notes, PIK Notes or such Private Exchange Notes, as the case may be, cease to
be outstanding.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of
Holdings or Capital, including, but not limited to, the Exchange Registration
Statement, which covers any of the Registrable Notes 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 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 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 Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if existent,
the trustee under any indenture governing the Exchange Notes and Private
Exchange Notes (if any).
Underwritten registration or underwritten offering: A
registration under the Securities Act in which securities of Holdings or
Capital are sold to an underwriter(s) for reoffering to the public.
2. Exchange Offer
(a) Each of the Issuers jointly and severally agrees to
use its reasonable best efforts to file with the SEC as soon as practicable
after the Closing, but in no event later than the Filing Date, documents
pertaining to an offer to exchange (the "Exchange Offer") any and all of the
Registrable Notes for a like aggregate principal amount of debt securities of
the Issuers which are identical in all material respects to the Notes (the
"Exchange Notes") (and which are entitled to the benefits of the Indenture or a
trust indenture which is substantially identical 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 which, in either case, has been
qualified under the TIA), except that the Exchange Notes shall have been
registered pursuant to an effective registration statement under the Securities
Act and will not contain terms with respect to transfer restrictions. The
Exchange Offer will be registered under the Securities Act on the appropriate
form (the "Exchange Registration Statement"), and the Exchange Offer will
comply with all applicable tender offer rules and regulations under the
Exchange Act. Each of the Issuers jointly and severally agrees to use its
reasonable best efforts to (x) cause the Exchange Registration Statement to
become effective under the Securities Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for at least 30 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 with respect to all Notes
validly tendered on or prior to the 60th day following the date the Exchange
Registration Statement is declared effective (in any event on or prior to the
Consummation Date) (or, in the event of any extension of the Exchange Offer
required by applicable law, the earliest day following any such extension).
Each Holder who participates in the Exchange Offer will be required to
represent that any Exchange Notes 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 Notes in violation of
the provisions of the Securities Act, that such Holder is not
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an affiliate of either of the Issuers within the meaning of Rule 405
promulgated under the Securities Act or if it is such an affiliate, that it
will comply with the registration and prospectus delivery requirements of the
Securities Act, to the extent applicable, and that is not acting on behalf of
any Person 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 Notes that are Private Exchange Notes and Exchange
Notes held by Participating Broker-Dealers, and the Issuers shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and Exchange Notes held by Participating Broker-Dealers) pursuant to
Section 3 of this Agreement.
(b) The Issuers shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the
staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of Exchange Notes 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 reasonable judgment of the Initial
Purchasers, represent the prevailing views of the staff of the SEC. Such "Plan
of Distribution" section shall also allow 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 Notes.
Each of the Issuers shall use its 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 such Persons must
comply with such requirements in order to resell the Exchange Notes, provided
that such period shall not exceed 180 days (or such longer period if extended
pursuant to the last paragraph of Section 5) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status as an unsold allotment in the
initial distribution, the Issuers upon the request of such Initial Purchasers
shall, simultaneously
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with the delivery of the Exchange Notes in the Exchange Offer, issue and
deliver to such Initial Purchasers, in exchange (the "Private Exchange") for
the Notes held by such Initial Purchasers, a like principal amount of debt
securities of the Issuers that are identical in all material respects to the
Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to
the same indenture as the Exchange Notes) except for the placement of a
restrictive legend on the Private Exchange Notes. If possible, the Private
Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and Private Exchange Notes will accrue from the
last interest payment date on which interest was paid on the Notes surrendered
in exchange therefor or, if no interest has been paid on the Notes, from the
Issue Date.
In connection with the Exchange Offer, the Issuers shall:
(i) 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;
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New York; and
(iii) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Notes of such Holder
so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substan-
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tially identical to the Indenture, which in either event will provide that (1)
the Exchange Notes will not be subject to the transfer restrictions set forth
in the Indenture and (2) the Private Exchange Notes will be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Notes will have the right to vote and give consents together on all matters
presented to such holders for votes or consents as one class and that neither
the Exchange Notes, the Private Exchange Notes nor the Notes will have the
right to vote or consent as a separate class on any matter.
(c) If (1) prior to the consummation of the Exchange
Offer, the Issuers or Holders of at least a majority in aggregate principal
amount of the Registrable Notes reasonably determine in good faith that (i) the
Exchange Notes would not, upon receipt, be freely transferable by such Holders
which are not affiliates (within the meaning of the Securities Act) of the
Issuers without restriction under the Securities Act and without restrictions
under applicable state securities laws, (ii) the interests of the Holders under
this Agreement would be adversely affected by the consummation of the Exchange
Offer or (iii) after conferring with counsel, the SEC is unlikely to permit the
commencement of the Exchange Offer prior to the Effectiveness Date, (2)
subsequent to the consummation of the Private Exchange, any holder of the
Private Exchange Notes so requests or (3) the Exchange Offer is commenced and
not consummated prior to the Consummation Date, then the Issuers shall promptly
deliver to the Holders and the Trustee written notice thereof (the "Shelf
Notice") and shall file an Initial Shelf Registration pursuant to Section 3.
The parties hereto agree that following the delivery of a Shelf Notice to the
Holders of Registrable Notes (in the circumstances contemplated by clauses (1)
and (3) of the preceding sentence), the Issuers shall not have any further
obligation to conduct the Exchange Offer or the Private Exchange under this
Section 2.
3. Shelf Registration
If a Shelf Notice is required to be delivered as contemplated
by Section 2(c), then:
(a) Initial Shelf Registration. The Issuers shall
prepare and 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 then existing Registrable Notes (the "Initial Shelf
Registration"). If the Issuers shall have not yet filed an Exchange
Registration Statement, each of the Issuers shall use its reasonable
best efforts to file with the SEC the Initial Shelf Registration on or
prior to the Filing Date. In any other instance, each of the Issuers
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shall use its reasonable best efforts to file with the SEC the Initial
Shelf Registration as promptly as practicable but, in any event,
within 45 days following delivery of the Shelf Notice. The Initial
Shelf Registration shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Notes for resale by such
Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuers
shall not permit any securities other than the Registrable Notes to be
included in the Initial Shelf Registration or any Subsequent Shelf
Registration. Each of the Issuers shall use its reasonable best
efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act, if an Exchange Registration
Statement has not yet been declared effective, on or prior to the
Effectiveness Date, or, in any other instance, as soon as practicable
after the filing thereof and in no event later than 60 days after
filing of the Initial Shelf Registration, and to keep the Initial
Shelf Registration continuously effective under the Securities Act
until the date which is 24 months from the date on which such Initial
Shelf Registration is declared effective (subject to extension
pursuant to the last paragraph of Section 5 hereof), or such shorter
period ending when (i) all Registrable Notes covered by the Initial
Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or (ii) a Subsequent
Shelf Registration covering all of the Registrable Notes has been
declared effective under the Securities Act (the "Effectiveness
Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time prior to the termination of the
Effectiveness Period, each of the Issuers shall use its reasonable
best efforts to promptly restore the effectiveness thereof, and in any
event shall, within 45 days of such cessation of effectiveness, amend
the Shelf Registration in a manner reasonably expected to restore the
effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the then existing
Registrable Notes (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, each of the Issuers shall use
its reasonable best efforts to cause the Subsequent Shelf Registration
to be declared effective as soon as practicable after such filing and
to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less
the aggregate number of days during which the Initial Shelf
Registration or any Subsequent Shelf Registration was previously
continuously effective. As used
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herein the term "Shelf Registration" means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers 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 or if required by the Securities
Act. The Issuers shall promptly supplement and amend the Shelf
Registration if any such supplement or amendment is requested by the
Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement or by any underwriter(s)
of such Registrable Notes.
4. Damage Amount
(a) The Issuers and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Issuers fail to fulfill
their 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 Issuers agree to pay as liquidated damages to each Holder of the
Registrable Notes an amount ("The Damage Amount") under the circumstances and
to the extent set forth below:
(i) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been declared effective on or prior to
the Effectiveness Date;
(iii) if an Initial Shelf Registration required by Section
2(c)(2) has not been filed on or prior to the date 45 days after
delivery of the Shelf Notice;
(iv) if an Initial Shelf Registration required by Section
2(c)(2) has not been declared effective on or prior to the date 105
days after the delivery of the Shelf Notice; and/or
(v) if (A) the Issuers have not exchanged the Exchange
Notes for all Notes validly tendered in accordance with the terms of
the Exchange Offer on or prior to the Consummation Date or (B) the
Exchange Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated as to all
Notes validly tendered or (C) if applicable, the Shelf Registration has
been declared effective and such Shelf Registration ceases to be
effective
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at any time prior to the termination of the Effectiveness Period.
(each such event referred to in clauses (i) through (v) above is a
"Registration Default"). The sole remedy available to Holders of Registrable
Notes for a Registration Default will be the payment of the Damage Amount as
follows: .50% per annum of the average Accreted Value of the Registrable Notes
during the first 90-day period following the occurrence of a Registration
Default and until it is waived or cured; and the Damage Amount will be
increased by an additional .25% per annum of average Accreted Value of the
Registrable Notes for each subsequent 90- day period during which the
Registration Default remains uncured, up to a maximum of 2.0% Damage Amount,
provided, however, that only Holders of Private Exchange Notes shall be
entitled to receive the Damage Amount as a result of a Registration Default
pursuant to clause (iii) or (iv), provided, further, that (1) upon the filing
of the Exchange Registration Statement or the Initial Shelf Registration (in
the case of (i) above), (2) upon the effectiveness of the Exchange Registration
Statement or a Shelf Registration (in the case of (ii) above), (3) upon the
filing of the Shelf Registration (in the case of (iii) above), (4) upon the
effectiveness of the Shelf Registration (in the case of (iv) above), or (5)
upon the exchange of Exchange Notes for all Notes validly tendered or the
effectiveness of a Shelf Registration (in the case of (v)(A) above), or upon
the subsequent effectiveness of the Exchange Registration Statement which had
ceased to remain effective or the effectiveness of a Shelf Registration (in the
case of (v)(B) above), or upon the subsequent effectiveness of the Shelf
Registration which had ceased to remain effective (in the case of (v)(C)
above), the Damage Amount on the Notes as a result of such clause (i), (ii),
(iii), (iv) or (v) (or the relevant subclause thereof), as the case may be,
shall cease to accrue.
(b) The Issuers shall notify the Trustee within one
business day after each and every date on which an event occurs in respect of
which the Damage Amount is required to be paid (an "Event Date"). Any Damage
Amounts due pursuant to (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v) of this
Section 4 will be payable in cash semi-annually on each May 15 and November 15
(to the Holders of record on the May 1 and November 1 immediately preceding
such dates), commencing with the first such date occurring after any Damage
Amounts commence to accrue and until such Registration Default is cured, by
depositing with the Trustee, in trust for the benefit of such Holders,
immediately available funds in sums sufficient to pay such Damage Amounts. The
Damage Amount will be determined by multiplying the applicable Damage Amount
rate by the principal amount of the Registrable Notes, multiplied by a
fraction, the numerator of which is the number of days such Damage Amount rate
was applicable during such
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period (determined on the basis of a 360-day year comprised 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 Section 2 or 3 hereof, the Issuers 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 the
Issuers shall:
(a) Prepare and file with the SEC, as provided herein, a
Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use their respective reasonable best efforts
to cause each such Registration Statement to become effective and
remain effective as provided herein, provided that, if (1) such
filing is pursuant to Section 3, or (2) a Prospectus contained
in an Exchange Registration Statement filed pursuant to Section 2
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuers shall,
upon written request, furnish to and afford the Holders of the
Registrable Notes covered by such Registration Statement and each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriter(s), 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 (to the extent practicable, at least 5 business days prior to
such filing). The Issuers shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which
the Holders must be afforded an opportunity to review prior to the
filing of such document, if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, or such Participating Broker-Dealer, as the case may be,
their counsel, or the managing underwriter(s), 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
15
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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) under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act
applicable to them 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 Issuers shall be deemed not to
have used their reasonable best efforts to keep a Registration
Statement effective during the Applicable Period if either of them
voluntarily takes any action that would result in selling Holders of
the Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable
Notes or such Exchange Notes during that period unless such action is
required by applicable law or unless the Issuers comply with this
Agreement, including without limitation, the provisions of clauses
5(c)(v) and (vi) below.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), 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 thereto has been
filed, and, with respect to a Registration Statement or any
post-effective amendment thereto, when the same has become effective
under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective
amendment thereto 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 Notes or resales
of Exchange Notes by Participating Broker-Dealers the representations
and warranties of the Issuers contained in any agreement (including
any underwriting agree-
16
-14-
ment) contemplated by Section 5(n) below cease to be true and correct,
(iv) of the receipt by either of 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
Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the
happening of any event 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 respect 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 either Issuer's
reasonable determination that a post-effective amendment to a
Registration Statement would be necessary or appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, use their
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 Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, 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 as promptly as practicable.
(e) If a Shelf Registration is filed pursuant to Section
3 and if requested by the managing underwriter(s), if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Notes 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(s), if any, or
such
17
-15-
Holders reasonably request to be included therein and (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.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, furnish to each
selling Holder of Registrable Notes who so requests and to each such
Participating Broker-Dealer who so requests and to counsel and the
managing underwriter(s), if any, without charge, one conformed copy of
the 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, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, deliver to each
selling Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel, and the managing
underwriter or underwriters, if any, without charge, 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, each of
the Issuers hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the
case may be, and the managing underwriter or underwriters or agents,
if any, and dealers (if any), in connection with the offering and sale
of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or
any delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, to
18
-16-
use their reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes 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 of (or exemption
from such registration or qualification), such Registrable Notes 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, if any, reasonably request in writing, provided that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Issuers 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); 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 Exchange Notes
held by Participating Broker-Dealers or the Registrable Notes covered
by the applicable Registration Statement; provided that neither of the
Issuers 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 otherwise so
subject.
(i) If a Shelf Registration is filed pursuant to Section
3, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Notes 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 Notes 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 their reasonable best efforts to cause the
Registrable Notes covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the managing underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes, except as may be
required solely as a
19
-17-
consequence of the nature of such selling Holder's business, in which
case each of the Issuers 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, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi),
as promptly as reasonably practicable prepare and (subject to Section
5(a)) file with the SEC, at the joint and several expense of each of
the Issuers, 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 Notes being sold
thereunder or to the purchasers of the Exchange Notes 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.
(l) Use their reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement or the Exchange
Notes, 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 Notes covered by such Registration
Statement or the Exchange Notes, 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 Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, 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 Notes or
Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement upon such reasonable terms and conditions as
are customary in underwritten offerings of debt securities similar to
the Notes and take all such other
20
-18-
actions as are reasonably requested by the managing underwriter(s), if
any, in order to expedite or facilitate the registration or the
disposition of such Registrable Notes, and in such connection, (i)
make such reasonable representations and warranties to the managing
underwriter or underwriters on behalf of any underwriters, with
respect to the business of Holdings 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 Notes, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Issuers and updates
thereof in form and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the managing underwriter or
underwriters covering the matters customarily covered in opinions
received in underwritten offerings of debt securities similar to the
Notes and such other customary matters as may be reasonably requested
by the managing underwriter(s); (iii) obtain "cold comfort" letters
and updates thereof in form 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 business
acquired by Holdings for which financial statements and financial data
are, or are required to be, included in the Registration Statement),
addressed to the managing underwriter or underwriters on behalf of any
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 Notes and such other matters as may be reasonably requested by the
managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall 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
Notes 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, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes
21
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during the Applicable Period, make available for inspection by any
selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters participating in any such disposition of
Registrable Notes, 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 (collectively, the "Inspectors"), at
the offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
properties of Holdings (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of Holdings to supply all information in each case
reasonably requested by any such Inspector in connection with such
Registration Statement. Records which Holdings determines, in good
faith, to be confidential and any Records which 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 material 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 or (iii) the information in such Records has been made
generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer or
underwriter 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 Issuers or for any purpose other than in connection
with such Registration Statement unless and until such is made
generally available to the public. Each selling Holder of such
Registrable Notes 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
prompt notice to Holdings and allow Holdings to undertake appropriate
action to prevent disclosure of the Records deemed confidential at
their expense.
(p) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a), as the
case may be, to be qualified under the TIA not later than the
effective date of the Exchange Registration Statement or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such
indenture and the Holders of
22
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the Registrable Notes, 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 their respective 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 in all material respects with all applicable
rules and regulations of the SEC and make generally available to its
securityholders earnings 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 90
days after the end of any 12-month period (i) commencing at the end of
any fiscal quarter in which Registrable Notes are sold to underwriters
in a firm commitment or 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 Holdings 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, in a form
reasonable and customary for underwritten offerings of debt securities
similar to the Notes, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or
the Private Exchange, as the case may be, and which includes an
opinion that (i) each of the Issuers has duly authorized, executed and
delivered the Exchange Notes and Private Exchange Notes and the
related indenture and (ii) each of the Exchange Notes or the Private
Exchange Notes, as the case may be, and related indenture constitute a
legal, valid and binding obligation of each of the Issuers,
enforceable against each of the Issuers in accordance with its
respective terms (with reasonable and customary exceptions and
qualifications).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuers (or to such other Person as directed by the Issuers) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Issuers shall ▇▇▇▇, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being canceled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; and, in no event shall such Registrable Notes be marked
as paid or otherwise satisfied.
23
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(t) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and the managing underwriter(s),
if any, participating in the disposition of such Registrable Notes 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 reasonable steps necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby.
The Issuers may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, as the
Issuers may, from time to time, reasonably request. The Issuers may exclude
from such registration the Registrable Notes of any seller or Participating
Broker-Dealer who fails to furnish such information within a reasonable time
after receiving such request. Each seller as to which any Shelf Registration
is being effected agrees to furnish promptly to the Issuers all information
required to be disclosed in order to make the information previously furnished
to the Issuers by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from Holdings of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes 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 amended Prospectus contemplated by Section 5(k), or until it is
advised in writing (the "Advice") by the Issuers that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Issuers 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 Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Holder or Participating Broker-
24
-22-
Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) or (y) the
Advice.
6. Registration Expenses
(a) All reasonable fees and expenses incident to the
performance of or compliance with this Agreement by the Issuers shall be borne
by the Issuers, jointly and severally, 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 Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions in the United States (x) where
the Holders of Registrable Notes are located, in the case of the Exchange
Notes, or (y) as provided in Section 5(h), in the case of Registrable Notes or
Exchange Notes to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Notes or Exchange Notes in a
form eligible for deposit with The Depository Trust Company and of printing
Prospectuses if the printing of Prospectuses is reasonably requested by the
managing underwriter or underwriters, if any, or, in respect of Registrable
Notes or Exchange Notes to be sold by any Participating Broker-Dealer during
the Applicable Period, if reasonably requested by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any
Registration Statement or of such Exchange Notes, as the case may be), (iii)
messenger, telephone and delivery expenses, (iv) reasonable fees and
disbursements of counsel for the Issuers and reasonable fees and disbursements
of special counsel for the sellers of Registrable Notes (subject to the
provisions of Section 6(b)), (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(n)(iii) (including,
without limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), (vi) rating agency fees,
(vii) Securities Act liability insurance, if the Issuers desire such insurance,
(viii) fees and expenses of the Trustee, (ix) fees and expenses of all other
Persons retained by the Issuers, (x) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties), (xi) the
expense of any annual audit, (xii) the fees and expenses incurred in connection
with any listing of the securities to be registered
25
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on any securities exchange and (xiii) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement. In the event of an
underwritten offering of Registrable Notes the Issuers shall not be responsible
for any "roadshow" expenses in connection therewith.
(b) In connection with any Shelf Registration hereunder,
the Issuers, jointly and severally, shall reimburse the Holders of the
Registrable Notes being registered in such registration for the reasonable fees
and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority in aggregate principal
amount of the Registrable Notes to be included in such Registration Statement
and other reasonable out-of-pocket expenses of the Holders of Registrable Notes
incurred in connection with the registration of the Registrable Notes.
(c) Notwithstanding any of the foregoing, the Issuers
shall not have any obligation to pay any underwriting fees, discounts or
commissions attributable to the sale of Registrable Notes.
7. Indemnification
(a) Each of the Issuers, jointly and severally, agrees to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, the officers and directors of each such Person, and each Person, if
any, who controls any such Person 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 or Prospectus (as amended or supplemented if the Issuers shall have
furnished any amendments or supplements thereto) or any 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, except insofar as 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 Issuers in writing by such
26
-24-
Participant expressly for use therein; provided that the foregoing indemnity
with respect to any preliminary Prospectus shall not inure to the benefit of
any Participant (or to the benefit of an officer or director of such
Participant or any Person controlling such Participant) from whom the Person
asserting any such losses, claims, damages or liabilities purchased
Registrable Notes or Exchange Notes if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary Prospectus is
eliminated or remedied in the related Prospectus (as amended or supplemented if
the Issuers shall have furnished any amendments or supplements thereto) and a
copy of the related Prospectus (as so amended or supplemented) shall have been
furnished to such Participant at or prior to the sale of such Registrable Notes
or Exchange Notes, as the case may be, to such Person.
(b) Each Participant will be required to agree, severally
and not jointly, to indemnify and hold harmless the Issuers, their respective
directors and officers and each Person who controls either of the Issuers
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 Issuers to
each Participant, but only with reference to information relating to such
Participant furnished to the Issuers in writing by such Participant expressly
for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary Prospectus. The liability of any
Participant under this paragraph (b) shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or Exchange Notes
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 paragraph (a) or (b) of this Section 7, 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 one
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
incurred by such counsel related to such proceeding. 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 has
failed to retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any
27
-25-
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and such Indemnified Person shall have been advised by counsel that
there may be one or more legal defenses available to it which are different
from or additional to those available to any such Indemnifying Person. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate law firm (in addition to
any local counsel) for all Indemnified Persons, and that all such reasonable
fees and expenses shall be reimbursed 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 Notes and Exchange Notes sold by all such Participants and any such
separate firm for the Issuers, their directors, their officers and such control
Persons of the Issuers shall be designated in writing by the Issuers. 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 is a final judgment for the plaintiff for which the Indemnified Person
is entitled to indemnification pursuant to this Agreement, the Indemnifying
Person agrees to indemnify any 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 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 60 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 Party 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 of any pending
or threatened proceeding in respect of which any Indemnified Person is a party
and indemnity has been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release (or any other release reasonably
acceptable to the Indemnified Person) of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a)
and (b) of this Section 7 is unavailable to an Indemnified
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Person in respect of any losses, claims, damages or liabilities referred
to therein (other than as a result of the proviso set forth in Section 7(a)),
then each Indemnifying Person under such paragraphs, in lieu of indemnifying
such Indemnified Person thereunder, 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 Issuers on the one hand and the Participants on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Issuers on the one hand and the
Participants on the other 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 or by the Participants and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(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
Notes or Exchange Notes exceeds the amount of any damages that such Participant
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
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 which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and ▇▇▇▇
▇▇
-▇▇-
Each of the Issuers covenants that it 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 and,
if at any time Holdings is not required to file such reports, it will, upon the
request of any Holder of Registrable Notes, make publicly available other
information of a like nature so long as necessary to permit sales pursuant to
Rule 144 or Rule 144A. Each of the Issuers further covenants that so long as
any Registrable Notes remain outstanding to make available to any Holder of
Registrable Notes in connection with any sale thereof, the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to (a) such Rule 144A, or (b) any similar rule or
regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banking
firm or firms that will underwrite the offering and the manager or managers
that will manage the offering will be selected by the Holders of a majority in
aggregate principal amount of such Registrable Notes included in such offering
and shall be reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any
underwritten offering hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes 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 reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by either Issuer
of any of its obligations under this Agreement, other than the occurrence of an
event which requires payment of Additional Interest, each Holder of Registrable
Notes, in addition to being entitled to exercise all rights provided herein, in
the Indenture or, in the case of the Initial Purchasers, in the Purchase
Agreement or granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Each of the Issuers,
jointly and severally, agree 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, jointly and severally,
that, in the event of any action for specific performance in
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respect of such breach, it shall waive the defense that a remedy at law would
be adequate.
(b) Enforcement. The Trustee shall be authorized to
enforce the provisions of this Agreement for the ratable benefit of the
Holders.
(c) No Inconsistent Agreements. Neither of the Issuers
has entered, as of the date hereof, and the Issuers shall not enter, after the
date of this Agreement, into any agreement with respect to any of their
securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. Neither of the Issuers has entered or will enter into any agreement
with respect to any of its securities which will grant to any Person piggy-back
rights with respect to a Registration Statement required to be filed under this
Agreement.
(d) Adjustments Affecting Registrable Notes. Neither of
the Issuers shall, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a
registration undertaken pursuant to this Agreement.
(e) 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 Issuers have obtained the
written consent of Holders of at least a majority of the then outstanding
aggregate principal amount of Registrable Notes. 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 Notes 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 Notes may be given by
Holders of at least a majority in aggregate principal amount of the Registrable
Notes being sold by such Holders pursuant to such Registration Statement,
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.
(f) 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 courier or telecopier:
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(i) if to a Holder of Registrable Notes or any
Participating Broker-Dealer, at the most current address given by the
Trustee to the Issuers; and
(ii) if to the Issuers, to TransWestern Holdings L.P. and
TWP Capital Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Chief Financial Officer and with a copy to ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: (i) when delivered by hand, if personally delivered; (ii)
five business days after being deposited in the mail, postage prepaid, if
mailed; (iii) one business day after being timely delivered to a next-day
courier; and (iv) when receipt is acknowledged by the addressee, 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.
(g) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes; provided that, with respect
to the indemnity and contribution agreements in Section 7, each Holder of
Registrable Notes subsequent to the Initial Purchasers shall be bound by the
terms thereof if such Holder elects to include Registrable Notes in a Shelf
Registration; 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
except to the extent such successor or assign holds Registrable Notes.
(h) 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) 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 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
32
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▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
(k) 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.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, 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 and therein.
(m) Joint and Several Obligations. Unless otherwise
stated herein, each of the obligations of the Issuers under this Agreement
shall be joint and several obligations of each of them.
(n) Notes Held by the Issuers or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRANSWESTERN HOLDINGS L.P.
BY TRANSWESTERN COMMUNICATIONS
COMPANY, INC., its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
TWP CAPITAL CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director