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Exhibit 4.7
UNISON HEALTHCARE CORPORATION
$20,000,000 13% SENIOR NOTES DUE 1999
December 1, 1997
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
UNISON HEALTHCARE CORPORATION, a Delaware corporation (the
"Issuer") is issuing and selling to ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "Initial
Purchaser"), upon the terms set forth in the Purchase Agreement, dated November
24, 1997 between the Issuer and the Initial Purchaser (the "Purchase
Agreement"), $20,000,000 aggregate principal amount of the Issuer's 13% Senior
Notes due 1999 (collectively, the "Notes"). As an inducement to the Initial
Purchaser to enter into the Purchase Agreement, the Issuer agrees with the
Initial Purchaser, for the benefit of the Holders (as defined below) of the
Securities (as defined below), as follows:
1. Definitions
Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See last paragraph of Section 6.
AGREEMENT: This Registration Rights Agreement dated as of the Closing
Date, between the Issuer and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York or the State of Arizona are
authorized or required by law
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or executive order to be closed.
CLOSING DATE: December 1, 1997.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 180th day after the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a)
ELIGIBLE SHELF NOTES: See Section 3.
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 NOTE: 13% Senior Notes due 1999 of the Issuer, including the
guarantees endorsed thereon, identical in all material respects to the Notes,
except for the transfer restrictions relating to the Notes.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 90th day after the Closing Date.
GUARANTEE: Shall have the meaning set forth in the Indenture.
GUARANTOR: Shall have the meaning set forth in the Indenture.
HOLDER: Any registered holder of Registrable Notes.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
INDENTURE: The Indenture, dated as of the Closing Date, among the
Issuer, the Guarantors and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as Trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time.
INITIAL PURCHASER: See the first introductory paragraph to this
Agreement.
INITIAL SHELF REGISTRATION STATEMENT: See Section 3(a).
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INSPECTORS: See Section 6(o).
ISSUER: See the first introductory paragraph to this Agreement.
NASD: National Association of Securities Dealers, Inc.
NOTES: See the first introductory paragraph to this Agreement.
NOTES PROSPECTUS: The prospectus included in any Notes Registration
Statement with respect to the terms of the offering of any portion of the
Securities covered by such Notes Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as such prospectus may be
amended or supplemented, including, without limitation, as such prospectus may
be amended pursuant to Rule 424(b) promulgated under the Securities Act.
NOTES REGISTRATION STATEMENT: Any registration statement of the Issuer
that covers any of the Registrable Notes that is filed with the SEC under the
Securities Act (including, but not limited to, the Exchange Registration
Statement, the Initial Shelf Registration Statement and any Subsequent Shelf
Registration Statement) in accordance with the provisions of this Agreement,
including any amendments to such registration statement, including
post-effective amendments, all supplements to the Notes Prospectus contained
therein and all exhibits thereto.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PURCHASE AGREEMENT: See the first introductory paragraph to this
Agreement.
RECORDS: See Section 6(o).
REGISTRABLE NOTES: (i) Notes, (ii) Private Exchange Notes and (iii) any
Exchange Notes received in the Exchange Offer, in each case, that may not be
sold without restriction under federal or state securities laws.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule
may be
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amended from time to time.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time.
SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Private Exchange Notes and the Exchange
Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION STATEMENT: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION STATEMENT: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as such act may be amended from
time to time.
TRUSTEE: The trustee under the Indenture.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Issuer are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) The Issuer shall (and shall cause each Guarantor to) use
its best efforts to (i) prepare and file with the SEC on or prior to the Filing
Date, a registration statement (the "Exchange Registration Statement") on an
appropriate form under the Securities Act with respect to an offer (the
"Exchange Offer") to the Holders of Notes to issue and deliver to such Holders,
in exchange for the Notes, a like aggregate principal amount of Exchange Notes,
(ii) cause the Exchange Registration Statement to become effective as promptly
as practicable after the filing thereof but in no event later than the
Effectiveness Date, (iii) commence the Exchange Offer promptly following the
declaration of effectiveness of the Exchange Registration Statement, (iv) issue,
within 30 days after the date on which the Exchange Offer is commenced, Exchange
Notes in exchange for all Notes tendered prior thereto in the Exchange Offer,
and (v) keep the Exchange Registration Statement effective until the
consummation of the Exchange Offer in accordance with its terms and for the
Applicable Period. The Exchange Offer shall not be subject to any conditions,
other than the Exchange
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Offer does not violate applicable law or any applicable interpretation of the
staff of the SEC.
(b) The Exchange Notes shall be issued under, and entitled to
the benefits of the Indenture.
(c) Interest on each Exchange Note and Private Exchange Note
will accrue from the last interest payment due 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 date of original issuance of the Notes. Each Exchange
Note and Private Exchange Note shall bear interest at the rate set forth
thereon.
(d) The Issuer may require each Holder who participates in the
Exchange Offer to represent that (i) any Exchange Notes received by it will be
acquired in the ordinary course of its business, (ii) at the time of the
commencement of the Exchange Offer and at the time of the consummation of the
Exchange Offer such Holder has not entered into any arrangement or understanding
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes in violation of the provisions of the
Securities Act, (iii) if such Holder is an affiliate of the Issuer within the
meaning of the Securities Act, that it will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable
to it, (iv) if such Holder is not a broker-dealer, it is not engaged in the
distribution of the Notes and that it does not intend to engage in the
distribution of the Exchange Notes, and (v) if such Holder is a Participating
Broker-Dealer, it will deliver a Notes Prospectus in connection with any resale
of the Exchange Notes.
(e) The Issuer shall include within the Notes Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," in form and substance acceptable to the Initial Purchaser, 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 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange
Offer for its own account in exchange for Notes that were acquired by it as a
result of market-making or other trading activity (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 Purchaser, represent the prevailing views of the staff
of the SEC. Such "Plan of Distribution" section shall also allow, to the extent
permitted by applicable policies and regulations of the SEC, the use of the
Notes Prospectus by all Persons subject to the prospectus delivery requirements
of the Securities Act, including, to the extent so permitted, all Participating
Broker Dealers, and shall include a statement describing the manner in which
Participating Broker-Dealers may resell the Exchange Notes. The Issuer shall use
its best efforts to keep the Exchange Registration Statement effective and to
amend and supplement the Notes Prospectus contained therein, in order to permit
such Notes 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 (the "Applicable Period").
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(f) If, upon consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Issuer (upon the written request from
such Initial Purchaser) shall, simultaneously with the delivery of the Exchange
Notes in the Exchange Offer, issue pursuant to the Indenture and deliver to the
Initial Purchaser, in exchange (the "Private Exchange") for the Notes held by
the Initial Purchaser, a like principal amount of debt securities of the Issuer,
guaranteed by any then existing Guarantors, that are identical in all material
respects to the Exchange Notes except for the existence of restrictions on
transfer thereof under the Securities Act and all applicable federal and state
securities laws of the several states of the U.S. (the "Private Exchange
Notes"). The Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes.
(g) In connection with the Exchange Offer, the Issuer
shall:
(1) mail to each Holder a copy of the Notes
Prospectus forming part of the Exchange Registration Statement,
together with an appropriate letter of transmittal (as an exhibit
thereto) and related documents;
(2) utilize the services of a depository for the
Exchange Offer with an address in the Borough of Manhattan, the City of
New York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Notes 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 with all applicable laws.
(h) As soon as practicable after the close of the Exchange
Offer or the Private Exchange, as the case may be, the Issuer shall:
(1) accept for exchange all Notes validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the case may
be, and not validly withdrawn;
(2) deliver to the Trustee for cancellation all Notes
so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each Holder tendering such 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.
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(i) The Exchange Notes and the Private Exchange Notes shall be
issued under the Indenture which will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture and that the
Exchange Notes, the Private Exchange Notes and the Notes, if any, will be deemed
one class of security (subject to the provisions of the Indenture) and entitled
to the benefits of any Guarantee on an equal and ratable basis.
(j) If, (i) prior to the consummation of the Exchange Offer,
either the Issuer or the Holders of a majority in aggregate principal amount of
the outstanding Registrable Notes determines in its or their reasonable judgment
that (A) the Exchange Notes would not, upon receipt, be tradeable by the Holders
thereof without restriction under the Securities Act, the Exchange Act or
applicable Blue Sky or state securities laws or (B) the interests of the Holders
under this Agreement, taken as a whole, would be adversely affected by the
consummation of the Exchange Offer, (ii) because of any change in law or
applicable interpretations of the staff of the SEC, the consummation of the
Exchange Offer by the Issuer would not be permitted prior to the Effectiveness
Date, (iii) the Exchange Offer is not consummated by the Effectiveness Date for
any reason, (iv) any Holder of Private Exchange Notes so requests in writing to
the Issuer within 120 days after the consummation of the Exchange Offer or (v)
in the case of any Holder not permitted to participate in the Exchange Offer or
any Holder that participates in the Exchange Offer but does not receive Exchange
Notes 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 Issuer within the meaning of the Securities Act)
and so notifies the Issuer within six months of consummation of the Exchange
Offer, then the Issuer (and any then existing Guarantor) shall promptly deliver
to the Holders and the Trustee written notice thereof (the "Shelf Notice") and
shall file an Initial Shelf Registration Statement pursuant to Section 3.
3. Shelf Registration
If a Shelf Notice is delivered pursuant to Section 2(j)(i),
(ii) or (iii), then this Section 3 shall apply to all Registrable Notes.
Otherwise, upon consummation of the Exchange Offer in accordance with Section 2,
the provisions of this Section 3 shall apply solely with respect to (A)(i) Notes
held by any Holder thereof not permitted to participate in the Exchange Offer
and (ii) Exchange Notes that are not freely tradeable as contemplated by Section
2(j)(v) hereof, provided that the relevant Holder has duly notified the Issuer
within six months of the consummation of the Exchange Offer as required by
Section 2(j)(v) and (B) Private Exchange Notes, provided that the relevant
Holder has duly notified the Issuer within 120 days of the consummation of the
Exchange Offer as required by Section 2(j)(iv). The Registrable Notes to which
this Section 3 shall apply shall be hereinafter referred to as ("Eligible Shelf
Notes").
(a) Initial Shelf Registration. Within the time periods set
forth in this Section 3(a), the Issuer shall (and shall cause any Guarantor to)
file with the SEC a Notes Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415
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covering all of the Eligible Shelf Notes (the "Initial Shelf Registration
Statement"). If the Issuer (and any then existing Guarantor) has not filed an
Exchange Registration Statement, the Issuer shall (and shall cause any Guarantor
to) file with the SEC the Initial Shelf Registration Statement on or prior to
the Filing Date and shall use its best efforts to cause such Initial Shelf
Registration Statement to be declared effective under the Securities Act on or
prior to the Effectiveness Date. Otherwise, the Issuer shall use its best
efforts to (and shall cause any Guarantor to) file with the SEC the Initial
Shelf Registration Statement within 20 days of the delivery of the Shelf Notice
and shall use its best efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act as promptly as practicable
thereafter. The Initial Shelf Registration Statement shall be on Form S-1 or
another appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuer (and any
Guarantors) shall not permit any securities other than the Eligible Shelf Notes
to be included in any Shelf Registration Statement. No Holder of Eligible Shelf
Notes shall be entitled to include any of its Eligible Shelf Notes in any Shelf
Registration Statement pursuant to this Agreement unless such Holder furnishes
to the Issuer and the Trustee in writing, such information, representations and
warranties as the Issuer may reasonably request for inclusion in any Shelf
Registration Statement or Notes Prospectus included therein. No Holder shall be
entitled to any Additional Interest pursuant to Section 4 hereof if such
▇▇▇▇▇▇'s Registrable Notes are excluded from a Shelf Registration Statement
because such Holder failed to furnish the Issuer in writing such information,
representations and warranties reasonably requested by the Issuer for use in
connection with the Shelf Registration Statement or any Notes Prospectus
contained therein. The Issuer shall use its best efforts to keep the Initial
Shelf Registration Statement continuously effective under the Securities Act
until the date which is 24 months from the Closing Date (the "Effectiveness
Period"), or such shorter period ending when (i) all Eligible Shelf Notes
covered by the Initial Shelf Registration Statement have been sold in the manner
set forth and as contemplated in the Initial Shelf Registration Statement or
(ii) a Subsequent Shelf Registration Statement covering all of the Eligible
Shelf Notes has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the Registrable Notes registered thereunder),
the Issuer shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 5
Business Days of such cessation of effectiveness amend such Shelf Registration
Statement in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file (and cause any Guarantor to file) an additional
"shelf" Notes Registration Statement pursuant to Rule 415 covering all of the
Eligible Shelf Notes (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Issuer shall use its best
efforts to cause the Subsequent Shelf Registration Statement to be declared
effective as soon as practicable after such filing and to keep such Subsequent
Shelf 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
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Registration Statement or any Subsequent Shelf Registration Statement were
previously continuously effective. As used herein, the term "Shelf Registration
Statement" means the Initial Shelf Registration Statement and any Subsequent
Shelf Registration Statements.
(c) Supplements and Amendments. The Issuer shall promptly
supplement and amend any Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if requested
by the Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Shelf Registration Statement or by any underwriter of such
Eligible Shelf Notes.
4. Additional Interest
(a) Additional cash interest (the "Additional Interest") with
respect to the Registrable Notes or the Eligible Shelf Notes, as indicated
below, shall be assessed as follows if any of the following events occurs (each
such event in clauses (i) through (iii) below, a "Registration Default"):
(i) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date, then commencing on the day after the Filing Date, Additional
Interest shall accrue on the Registrable Notes over and above the
stated interest rate at a rate of 0.25% per annum for the first 90 days
immediately following the Filing Date, such Additional Interest rate
increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration is declared effective on or prior to the
Effectiveness Date, then commencing on the day after the Effectiveness
Date, Additional Interest shall accrue on the Registrable Notes over
and above the stated interest rate at a rate of 0.25% per annum for the
first 90 days immediately following the Effectiveness Date, such
Additional Interest rate increasing by an additional 0.25% per annum at
the beginning of each subsequent 90-day period;
(iii) if (A) the Issuer has not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 210th day after the Closing Date, (B) the
Exchange Offer Registration Statement ceases to be effective at any
time prior to the time that the Exchange Offer is consummated or at any
time during the Applicable Period, (C) a Shelf Registration Statement
has been declared effective and such Shelf Registration Statement
ceases to be effective at any time during the Effectiveness Period and
is not declared effective again within five Business Days, or (D)
pending the announcement of a material corporate transaction, the
Issuer issues a written notice pursuant to Section 6(e)(v) or (vi) that
a Shelf Registration Statement or Exchange Registration Statement is
unusable and the aggregate number of days in any 365-day period for
which all such notices issued or
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required to be issued, have been, or were required to be, in effect
exceeds 120 days in the aggregate or 30 days consecutively, in the case
of a Shelf Registration Statement, or 15 days in the aggregate in the
case of an Exchange Registration Statement, then Additional Interest
shall accrue on the Registrable Notes in the case of (A), (B) and (D)
(but in the case of (D) only to the extent the Registration Default
relates to an Exchange Registration Statement) or on the Eligible Shelf
Notes in the case of (C) or (D) (but in the case of (D) only to the
extent the Registration Default relates to a Shelf Registration
Statement) over and above the stated interest rate at a rate of 0.25%
per annum for the first 90 days commencing on (w) the 210th day after
the date hereof, in the case of (A) above, (x) the date on which such
Exchange Registration Statement ceases to be effective without being
declared effective again within five Business Days in the case of (B)
above, (y) the date on which such Shelf Registration Statement ceases
to be effective without being declared effective again within five
Business Days in the case of (C) above or (z) the date on which such
Exchange Registration Statement or Shelf Registration Statement ceases
to be usable in case of clause (D) above, the rate of such Additional
Interest increasing by an additional 0.25% per annum at the beginning
of each such subsequent 90-day period;
provided, however, that the Additional Interest shall only accrue with respect
to one Registration Default at a time and the maximum increase in the interest
rate on the Registrable Notes may not exceed 2.0% per annum in the aggregate;
and provided further, Additional Interest on such Registrable Notes or Eligible
Shelf Notes shall cease to accrue upon the earlier of (x) the date on which all
applicable Registration Defaults have been cured with respect to Registrable
Notes or Eligible Shelf Notes, or (y) the date on which all such Registrable
Notes or Eligible Shelf Notes become freely transferable by Holders other than
affiliates of the Issuer without further registration under the Securities Act.
(b) The Issuer shall notify the Trustee within two Business
Days after each and every date on which Registration Default occurs. Any
Additional Interest accruing on the Registrable Notes or the Eligible Shelf
Notes pursuant to this Section 4 will be payable in cash on the regular interest
payment dates with respect to the Registrable Notes or the Eligible Shelf Notes
to the Holders of record on the applicable record date. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the aggregate principal amount of the Registrable Notes or Eligible
Shelf Notes, 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 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. Hold-Back Agreements
The Issuer agrees that it will not effect any public or
private sale or distribution (including a sale pursuant to Regulation D under
the Securities Act) of any securities that are the same as or similar to those
covered by a Notes Registration Statement filed pursuant to
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Section 2 or 3 hereof, or any securities convertible into or exchangeable or
exercisable for such securities, during the 10 days prior to, and during the
90-day period beginning on, the effective date of any Notes Registration
Statement filed pursuant to Sections 2 and 3 hereof, unless the Holders of a
majority in the aggregate principal amount of the Registrable Notes to be
included in such Notes Registration Statement consent.
6. Notes Registration Procedures
In connection with the filing of any Notes Registration
Statement pursuant to Section 2 or 3 hereof, the Issuer shall effect such
registrations to permit the sale of such securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Notes Registration Statement filed
by the Issuer hereunder, the Issuer shall:
(a) prepare and file with the SEC within the time periods set
forth herein the Exchange Registration Statement and/or a Shelf Registration
Statement and use its best efforts to cause each such Notes Registration
Statement to become effective and remain effective as provided herein; provided
that, if (1) a Shelf Registration Statement is filed pursuant to Section 3, or
(2) a Notes 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 Notes Registration Statement or Notes
Prospectus or any amendments or supplements thereto, the Issuer shall, if
requested, furnish to and afford the Holders of the Registrable Notes to be
registered pursuant to such Shelf Registration Statement, each Participating
Broker-Dealer, their respective 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 five business days prior to
such filing). The Issuer shall not file any such Notes Registration Statement or
Notes Prospectus or any amendments or supplements thereto if the holders of a
majority in aggregate principal amount of the Registrable Notes covered by such
Notes Registration Statement, or any such Participating Broker-Dealer, as the
case may be, their counsel, or the managing underwriters, if any, shall
reasonably object;
(b) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Notes Registration Statement; and in
connection therewith, to effect any changes to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of the TIA;
and execute, and cause the Trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(c) prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Registration Statement, as the case may be, as may be necessary to keep such
Notes Registration Statement continuously effective for the Effectiveness Period
or the Applicable Period, as the case may be; cause the
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related Notes 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 effect, in each case as promulgated under
the Securities Act; and comply with the provisions of the Securities Act and the
Exchange Act applicable to it with respect to the disposition of all securities
covered by such Notes Registration Statement as so amended or in such Notes
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 Notes
Prospectus. The Issuer shall not, during the Applicable Period, take any action
that would result in selling Holders of the Registrable Notes covered by a Notes
Registration Statement or Participating Broker-Dealers seeking to sell Exchange
Notes not being able to sell such Registrable Notes or such Exchange Notes
during that period;
(d) furnish to such selling Holders and Participating
Broker-Dealers who so request (i) a copy of the order of the SEC declaring such
Registration Statement and any post-effective amendment thereto effective and
(ii) such number of copies of such Notes Registration Statement and of each
amendment and supplement thereto (in each case, if requested, including any
documents incorporated therein by reference and any exhibits thereto), (iii)
such number of copies of any Notes Prospectus included in such Notes
Registration Statement and (iv) such other documents, (including any amendments
required to be filed pursuant to clause (c) of this Section), as any such Person
may reasonably request. The Issuer hereby consents to the use of the Notes
Prospectus by each of the selling Holders of Registrable Notes 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 Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Notes Prospectus and any amendment or
supplement thereto;
(e) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Notes 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 in writing the selling Holders of
Registrable Notes, 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) (i) when a Notes Prospectus or any Notes Prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Notes Registration Statement or any post-effective amendment, when the same has
become effective (including in such notice a written statement that any Holder
may, upon request, obtain, without charge, one conformed copy of such Notes
Registration Statement or post-effective amendment), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Notes Registration
Statement or of any order preventing or suspending the use of any Notes
Prospectus or the initiation of any proceedings for that purpose, (iii) if at
any time when a Notes Prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes the representations
and warranties of the Issuer contained in any agreement (including any
underwriting agreement) contemplated by Section 6(n) hereof cease to be true and
correct, (iv) of the receipt by the Issuer of any notification with respect to
the suspension of the
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qualification or exemption from qualification of a Notes 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, the existence of any condition or any information
becoming known that makes any statement made in such Notes Registration
Statement or related Notes 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
Notes Registration Statement, Notes Prospectus or documents so that, in the case
of the Notes Registration Statement and the Notes 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 light of the circumstances under which they were made, not misleading, and
(vi) of any determination by the Issuer that a post-effective amendment to a
Notes Registration Statement would be appropriate;
(f) use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Notes Registration Statement or of any order
preventing or suspending the use of a Notes 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 its best efforts to
obtain the withdrawal of any such order at the earliest possible date;
(g) if (A) a Shelf Registration Statement is filed pursuant to
Section 3 or (B) a Notes 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 or (C) requested by the managing
underwriters, 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 or revisions to information therein relating to such
underwriters or selling Holders as the managing underwriters, if any, or such
Holders or any of their respective counsel reasonably request to be included or
made therein and (ii) make all required filings of such prospectus supplement or
such post-effective amendment as soon as practicable after the Issuer has
received notification from the managing underwriters, if any, or from the
Holders of a majority in aggregate principal amount of the Registrable Notes
being sold of the matters to be incorporated in such prospectus supplements or
post-effective amendment;
(h) prior to any public offering of Registrable Notes or any
delivery of a Notes Prospectus contained in the Exchange Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use its best efforts to register or qualify, and to cooperate
with all selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable Notes or
Exchange Notes, as the case may be,
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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
any managing underwriter or underwriters, if any, 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 Issuer agrees
to cause its counsel to perform Blue Sky investigations and file any
registrations and qualifications required to be filed pursuant to this Section
6(h); keep each such registration or qualification (or exemption therefrom)
effective during the period such Notes Registration Statement is required to be
kept effective and do any and all other acts or things best 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 the Issuer nor any
Guarantor 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 excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject;
(i) if (A) a Shelf Registration Statement is filed pursuant to
Section 3 or (B) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is requested to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, 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 such Holders may request;
(j) use its best efforts to cause the Registrable Notes
covered by any Notes Registration Statement to be registered with or approved by
such governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter, if any, to consummate the
disposition of such Registrable Notes;
(k) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Notes 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 6(e)(v) or 6(e)(vi) hereof, as promptly as practicable
prepare and file with the SEC, at the expense of the Issuer, a supplement or
post-effective amendment to the Notes Registration Statement or a supplement to
the related Notes 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 Notes
Prospectus will be delivered by a Participating Broker-Dealer, such Notes
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be
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stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(l) use its reasonable efforts to cause the Registrable Notes
covered by a Notes Registration Statement 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 Notes Registration
Statement or the managing underwriter or underwriters, if any;
(m) prior to the initial issuance of the Exchange Notes, (i)
provide the Trustee with one or more certificates for the Registrable Notes in a
form eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Exchange Notes;
(n) if a Shelf Registration Statement is filed pursuant to
Section 3, enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings of debt
securities similar to the Notes, as may be appropriate in the circumstances) and
take all such other actions in connection therewith (including those reasonably
requested by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold) in order to
expedite or facilitate the registration or the disposition of such Registrable
Notes, and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the Holders and
the underwriters, if any, with respect to the business of the Issuer and its
subsidiaries, and the Notes Registration Statement, Notes Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar to
the Notes, as may be appropriate in the circumstances, and confirm the same if
and when required; (ii) obtain opinions of counsel to the Issuer and updates
thereof (which counsel and opinions, in form, scope and substance shall be
reasonably satisfactory to the managing underwriters, if any, and the Holders of
a majority in aggregate principal amount of the Registrable Notes being sold),
addressed to each selling Holder and each of the underwriters, if any, covering
the matters customarily covered in opinions of counsel to the Issuer requested
in underwritten offerings of debt securities similar to the Notes, as may be
appropriate in the circumstances; (iii) obtain "cold comfort" letters and
updates thereof (which letters and updates, in form, scope and substance shall
be reasonably satisfactory to the managing underwriters and their counsel) from
the independent certified public accountants of the Issuer (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Issuer or of any business acquired by the Issuer for which financial statements
and financial data are, or are required to be, included in the Notes
Registration Statement), addressed to each of the underwriters and each selling
Holder, 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, as may be appropriate in the
circumstances, and such other matters as reasonably requested by underwriters or
the Holders of a majority in aggregate principal amount of the
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Registrable Notes being sold; and (iv) deliver such documents and certificates
as may be reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold and the managing
underwriters, if any, to evidence the continued validity of the representations
and warranties of the Issuer and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any conditions contained in the
underwriting agreement or other similar agreement entered into by the Issuer;
(o) if (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Notes 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, 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, any underwriter 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, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all financial and other records and pertinent corporate documents of the
Issuer and its subsidiaries (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 the Issuer
and its subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Notes Registration Statement. Such Records
shall be kept confidential by each Inspector and shall not be disclosed by the
Inspector unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Notes Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (iii) the information in such Records is
public or has been made generally available to the public other than as a result
of a disclosure or failure to safeguard by such Inspector or (iv) disclosure of
such information is, in the opinion of counsel for any Inspector, reasonably
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, related to, or involving this agreement, or any
transaction contemplated hereby or arising hereunder. Each selling Holder of
such Registrable Notes 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 Issuer 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, except as otherwise required by law or legal
process, it will, as promptly as practicable upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Issuer and, to the extent practicable, use its reasonable efforts to allow the
Issuer, at its expense, to undertake appropriate action to prevent disclosure of
the Records deemed confidential at their expense;
(p) comply with all applicable rules and regulations of the
SEC and make generally available to the security holders of the Issuer earnings
statements satisfying the
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provisions of section 11(a) of the Securities Act and Rules 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 3-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 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 the
Issuer after the effective date of a Notes Registration Statement, which
statements shall cover said periods;
(q) upon consummation of an Exchange Offer or Private
Exchange, obtain an opinion of counsel to the Issuer (in form, scope and
substance reasonably satisfactory to the Initial Purchaser and its counsel),
addressed to the Trustee for the benefit of all Holders participating in the
Exchange Offer or Private Exchange, as the case may be, to the effect that (i)
the Issuer and any Guarantors have duly authorized, executed and delivered the
Exchange Notes or the Private Exchange Notes, as the case may be, and the
Indenture, (ii) the Exchange Notes or the Private Exchange Notes, as the case
may be, and the Indenture constitute legal, valid and binding obligations of the
Issuer and the existing Guarantors, enforceable against the Issuer and the
existing Guarantors in accordance with their respective terms, except as such
enforcement may be subject to customary exceptions;
(r) if the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by the Holders to the Issuer
(or to such other Person as directed by the Issuer) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Issuer shall mark,
or caused to be marked, on such Registrable Notes that such Registrable Notes
are being cancelled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; provided that in no event shall such Registrable
Notes be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable Notes covered by
any Notes Registration Statement and each underwriter, 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 NASD; and
(t) use its best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes covered by a Notes
Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuer such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes as the Issuer may,
from time to time, reasonably request. The Issuer may exclude from such
registration the Registrable Notes of any seller who fails to furnish such
information within a reasonable time (which time in no event shall exceed 60
days) after receiving such request from the Issuer.
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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 the Issuer of the happening of any event of the kind
described in Section 6(e)(ii), (iv), (v), or (vi), such Holder will forthwith
discontinue disposition of such Registrable Notes covered by a Notes
Registration Statement and such Participating Broker-Dealer will forthwith
discontinue disposition of such Exchange Notes pursuant to any Notes Prospectus
and, in each case, forthwith discontinue dissemination of such Notes Prospectus
until such Holder's or Participating Broker-Dealer's receipt of the copies of
the supplemented or amended Notes Prospectus contemplated by Section 6(k), or
until it is advised in writing (the "Advice") by the Issuer that the use of the
applicable Notes Prospectus may be resumed, and has received copies of any
amendments or supplements thereto and, if so directed by the Issuer, such Holder
or Participating Broker-Dealer, as the case may be, will deliver to the Issuer
all copies, other than permanent file copies, then in such Holder's or
Participating Broker-Dealer's possession, of the Notes Prospectus covering such
Registrable Notes current at the time of the receipt of such notice. In the
event the Issuer shall give any such notice, 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 Business Day when each
Participating Broker-Dealer shall have received (x) the copies of the
supplemented or amended Notes Prospectus contemplated by Section 6(k) or (y) the
Advice.
7. Registration Expenses
(a) All fees and expenses (other than underwriting discounts
or commissions) incident to the performance of or compliance with this Agreement
shall be borne by the Issuer, whether or not the Exchange Offer or a Shelf
Registration Statement 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 any underwritten offering and (B) fees and expenses of compliance with
state securities or Blue Sky laws as provided in Section 6(h) hereof, (ii)
printing expenses, including, without limitation, expenses of printing Notes
Prospectuses if the printing of Notes Prospectuses is requested by the managing
underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Notes
Registration Statement or by any Participating Broker-Dealer during the
Applicable Period, as the case may be, (iii) messenger, telephone and delivery
expenses incurred in connection with the performance of its obligations
hereunder, (iv) fees and disbursements of counsel for the Issuer, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 6(o)(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 Issuer
desires such insurance, (viii) fees and expenses of all other Persons retained
by the Issuers, (ix) internal expenses of the Issuer (including, without
limitation, all salaries and expenses of officers and employees of the Issuer
performing legal or accounting duties), (x) the expense of any annual audit,
(xi) the
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fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange and (ii) the expenses
relating to printing, word processing and distributing all Notes Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) The Issuer shall reimburse the Holders 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 any Notes Registration Statement. The
Issuer shall pay all documentary, stamp, transfers or other transactional taxes
attributable to the issuance or delivery of the Exchange Notes or Private
Exchange Notes in exchange for the Notes; provided that the Issuer shall not be
required to pay taxes payable in respect of any transfer involved in the
issuance or delivery of any Exchange Note or Private Exchange Note in a name
other than that of the Holder of the Note in respect of which such Exchange Note
or Private Exchange Note is being issued.
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8. Indemnification
(a) Indemnification by the Issuer. The Issuer shall (and shall
cause each Guarantor, jointly and severally, to) without limitation as to time,
indemnify and hold harmless each Holder of Registrable Notes, Exchange Notes, or
Private Exchange Notes and each Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, each Person, if any, who controls each such
Holder (within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act) and the officers, directors and partners of each such
Holder, Participating Broker-Dealer and controlling person, to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees and disbursements as provided in this
Section 8) and expenses (including, without limitation, costs and expenses
incurred in connection with investigating, preparing, pursuing or defending
against any of the foregoing)(collectively, "Losses"), as incurred, directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue or alleged untrue statement of a material fact contained in any
Notes Registration Statement, Notes Prospectus or form of prospectus, or in any
amendment or supplement thereto, or in any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
Losses are solely based upon information relating to such Holder or
Participating Broker-Dealer and furnished in writing to the Issuer by such
Holder or Participating Broker-Dealer or its counsel expressly for use therein;
provided, however, that the Issuer will not be liable to any Indemnified Party
under this Section 8 to the extent Losses were solely caused by an untrue
statement or omission or alleged untrue statement or omission that was contained
or made in any preliminary prospectus and corrected in the Notes Prospectus or
any amendment or supplement thereto if (i) the Notes 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, (ii)
any such Losses resulted from an action, claim or suit by any Person who
purchased Registrable Notes or Exchange Notes which are the subject thereof from
such Indemnified Party and (iii) it is established in the related proceeding
that such Indemnified Party failed to deliver or provide a copy of the Notes
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 Notes Prospectus (as amended or supplemented) was a result
of noncompliance by the Issuer with Section 6 of this Agreement. The Issuer
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each Person who controls such
Persons (within the meaning of Section 5 of the Securities Act or Section 20(a)
of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders or the Participating Broker-Dealer.
(b) Indemnification by Holders. In connection with any Notes
Registration
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Statement, Notes Prospectus or form of prospectus, any amendment or supplement
thereto, or any preliminary prospectus in which a Holder is participating, such
Holder shall furnish to the Issuer in writing such information as the Issuer
reasonably requests for use in connection with any Notes Registration Statement,
Notes Prospectus or form of prospectus, any amendment or supplement thereto, or
any preliminary prospectus and shall, without limitation as to time, indemnify
and hold harmless the Issuer, its directors and each Person, if any, who
controls the Issuer (within the meaning of Section 15 of the Securities Act and
Section 20(a) of the Exchange Act), and the directors, officers, and partners of
such controlling persons, to the fullest extent lawful, from and against all
Losses arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Notes Registration Statement, Notes Prospectus or
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading to the extent (but only to the extent) that such Losses are finally
judicially determined by a court of competent jurisdiction (which determination
is not subject to appeal) to have resulted solely from an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact contained in or omitted from any information so furnished in
writing by such Holder to the Issuer expressly for use therein. Notwithstanding
the foregoing, in no event shall the liability of any selling Holder be greater
in amount than the dollar amount of the proceeds (net of payment of all
expenses) received by such Holder upon the sale of the Registrable Notes giving
rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party shall promptly notify the party
or parties from which such indemnity is sought (the "Indemnifying Parties") in
writing; provided, that the failure to so notify the Indemnifying Parties shall
not relieve the Indemnifying Parties from any obligation or liability except to
the extent (but only to the extent) that it shall be finally determined by a
court of competent jurisdiction (which determination is not subject to appeal)
that the Indemnifying Parties have been prejudiced materially by such failure.
The Indemnifying Party shall have the right, exercisable by
giving written notice to an Indemnified Party, within 20 Business Days after
receipt of written notice from such Indemnified Party of such proceeding, to
assume, at its expense, the defense of any such proceeding, provided, that an
Indemnified Party shall have the right to employ separate counsel in any such
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or parties
unless: (1) the Indemnifying Party has agreed to pay such fees and expenses; or
(2) the Indemnifying Party shall have failed promptly to assume the defense of
such proceeding or shall have failed to employ counsel satisfactory to such
Indemnified Party; or (3) the named parties to any such proceeding (including
any impleaded parties) include both such Indemnified Party and the Indemnifying
Party or any of its affiliates or controlling persons, and such Indemnified
Party shall have been advised by counsel that there may be one or more defenses
available to such
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Indemnified Party that are in addition to, or in conflict with, those defenses
available to the Indemnifying Party or such affiliate or controlling person (in
which case, if such Indemnified Party notifies the Indemnifying Parties in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense and the reasonable fees and expenses of such counsel shall be
at the expense of the Indemnifying Party; it being understood, however, that,
the Indemnifying Party shall not, in connection with any one such Proceeding or
separate but substantially similar or related proceedings in the same
jurisdiction, arising out of the same general allegations or circumstances, be
liable for the fees and expenses or more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such Indemnified
Party).
No Indemnifying Party shall be liable for any settlement of
any such proceeding effected without its written consent, which shall not be
unreasonably withheld, but if settled with its written consent, or if there be a
final judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance satisfactory to the Indemnified Party, from all liability in respect
of such proceeding for which such Indemnified Party would be entitled to
indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 8), then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall have a joint and several obligation
to contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party, on the one hand,
and Indemnified Party, on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent any such statement or omission. The amount paid or payable by
an Indemnified Party as a result of any Losses shall be deemed to include any
legal or other fees or expenses incurred by such party in connection with any
proceeding, to the extent such party would have been indemnified for such fees
or expenses if the indemnification provided for in Section 8(a) or 8(b) was
available to such party.
The parties hereto agree that it would not be just and
equitable if contribution
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pursuant to this Section 8(d) were determined by pro rata allocation or by other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 8(d), a selling Holder shall not be required to
contribute, in the aggregate, any amount in excess of such Holder's Maximum
Contribution Amount. A selling Holder's "Maximum Contribution Amount" shall
equal the excess of (i) the aggregate proceeds received by such Holder pursuant
to the sale of such Registrable Notes or Exchange Notes over (ii) the aggregate
amount of damages that such Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
9. Rules 144 and 144A
The Issuer covenants that it shall (a) file the reports
required to be filed by it (if so required) under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Issuer is not required
to file such reports, it will, upon the request of any Holder of Registrable
Notes, make publicly available other information necessary to permit sales
pursuant to Rule 144 and Rule 144A and (b) take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Notes without registration under the
Securities Act pursuant to the exemptions provided by Rule 144 and Rule 144A.
Upon the request of any Holder, the Issuer shall deliver to such Holder a
written statement as to whether it has complied with such informational and
other requirements.
10. Underwritten Registrations of Registrable Notes
If any of the Registrable Notes covered by any Shelf
Registration Statement 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 Notes included in such offering; provided,
however, that such investment banker or investment bankers and manager or
managers must be reasonably acceptable to the Issuer.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such ▇▇▇▇▇▇ (a) agrees to sell such
▇▇▇▇▇▇'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.
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11. Miscellaneous
(a) No Inconsistent Agreements. The Issuer has not entered, as
of the date hereof, and the Issuer shall not enter, after the date of this
Agreement, into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Issuer has not
entered and will not enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back rights with respect to a
Notes Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer shall
not, directly or indirectly, take any action with respect to the Registrable
Notes that would adversely affect the ability of the Holders to include such
Registrable Notes 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 (A) in circumstances that would adversely affect any
Holders of Registrable Notes, the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Notes and (B) in
circumstances that would adversely affect Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 8 and this Section 11(c) may not be amended,
modified or supplemented without the prior written consent of each Holder and
each Participating Broker-Dealer (including any Person who was a Participating
Broker-Dealer, Holder of Registrable Notes or Holder of Exchange Notes, as the
case may be, disposed of pursuant to any Notes Registration Statement).
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 tendered pursuant to the
Exchange Offer or sold pursuant to a Notes 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 tendered
or being sold by such Holders pursuant to such Notes Registration Statement.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(1) if to a Holder of Securities or to 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 of the Notes, with a copy in like manner to
the Initial Purchaser as follows:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(2) if to the Initial Purchaser, at the address
specified in Section 11(d)(1);
(3) if to the Issuer, as follows:
UNISON HEALTHCARE CORPORATION
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
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 United States mail, postage prepaid, if
mailed, one Business Day after being timely delivered to a next-day air courier
guaranteeing overnight delivery, and 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 the 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, including, without limitation and without the need for an express
assignment, subsequent Holders of 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 WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAW. THE ISSUER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK
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STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY TO DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE ISSUER IRREVOCABLY
CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE ISSUER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ISSUER IN ANY OTHER
JURISDICTION.
(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 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 Issuer or Its Affiliates. Whenever
the consent or approval of holders of a specified percentage of Securities is
required hereunder, Securities held by the Issuer or its 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 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
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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,
understanding, correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Issuer 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 Agreement
as of the date first written above.
UNISON HEALTHCARE CORPORATION
By: ______________________________
Name:
Title:
ACCEPTED AND AGREED TO:
JEFFERIES & COMPANIES, INC.
By: ______________________________
Name:
Title:
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