EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 14, 1998
Among
OCWEN ASSET INVESTMENT CORP.
and
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INC.
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
as Initial Purchasers
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TABLE OF CONTENTS
Page
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1. Definitions. ....................................................... 1
2. Securities Subject to This Agreement. .............................. 3
3. Registered Exchange Offer. ......................................... 3
4. Shelf Registration. ................................................ 4
5. Liquidated Damages ................................................. 6
6. Registration Procedures. ........................................... 6
7. Registration Expenses. ............................................. 16
8. Indemnification and Contribution. .................................. 16
9. Rule 144A. ......................................................... 19
10. Participation in Underwritten Registrations. ....................... 20
11. Selection of Underwriters. ......................................... 20
12. Miscellaneous. ..................................................... 20
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1
This Registration Rights Agreement (this "Agreement") is made
and entered into as of July 14, 1998 by and among Ocwen Asset Investment Corp.
(the "Company") and ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Inc., ▇.▇.
▇▇▇▇▇▇▇▇ & Co. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 9, 1998, among the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of $150 million principal amount of 11.50%
Senior Notes due 2005 (the "Notes").
In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligations to purchase the
Notes under the Purchase Agreement. Capitalized terms used but not specifically
defined herein have the respective meanings ascribed thereto in the Purchase
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Notes were sold to the
Initial Purchasers.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the New Notes, (ii) the
maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof and (iii) the
delivery by the Company of the New Notes in the same aggregate
principal amount as the aggregate principal amount of Notes tendered by
Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each
Distribution Date until the earlier of (i) the date on which Liquidated
Damages no longer are payable or (ii) the redemption or maturity
thereof.
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Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company under the
Securities Act of the New Notes pursuant to a Registration Statement
pursuant to which the Company shall offer the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange
all such outstanding Transfer Restricted Securities held by such
Holders for New Notes in an aggregate principal amount equal to the
aggregate principal amount of the Notes tendered in such exchange offer
by such Holder.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the Prospectus
which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act and to certain non-U.S. persons.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture dated as of July 14, 1998 between
the Company and the Trustee, pursuant to which the Notes are to be
issued, as such Indenture is amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
NASD: National Association of Securities Dealers, Inc.
New Notes: The Company's 11.50% Senior Notes due 2005 to
be issued pursuant to the Indenture in the Exchange Offer.
Person: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all documents incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of New Notes pursuant to an
Exchange Offer or (b) the
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registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in either case, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and documents incorporated
by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration: The registration contemplated in
Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb), as amended.
Transfer Restricted Securities: Each Note until the
earliest to occur of (a) the date on which any such security has been
exchanged by a person other than a Broker-Dealer for New Notes in the
Exchange Offer, (b) following the exchange by a Broker-Dealer in the
Exchange Offer of Notes for New Notes, the date on which such new
securities are sold to a purchaser who receives from such Broker-Dealer
on or prior to the date of such sale a copy of the prospectus contained
in the Exchange Offer Registration Statement, (c) the date on which
such Notes have been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or
(d) the date on which such Notes are distributed to the public pursuant
to Rule 144 under the Securities Act or may be sold to the public
without compliance with the requirements of such rule.
Trustee: Norwest Bank Minnesota, National Association or
any successor trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted Securities.
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3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with) or one of the
events set forth in Section 4(a)(ii) has occurred, the Company shall
(i) cause to be filed with the Commission promptly after the Closing
Date, but in no event later than 90 days after the Closing Date, a
Registration Statement under the Securities Act relating to the New
Notes and the Exchange Offer, (ii) use its reasonable best efforts to
cause such Registration Statement to be declared effective by the
Commission no later than 180 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to
such Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to
Rule 430A under the Securities Act and (C) cause all necessary filings
in connection with the registration and qualification of the New Notes
to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) unless
the Exchange Offer would not be permitted by applicable law or
Commission policy, the Company will commence the Exchange Offer and use
its reasonable best efforts to issue on or prior to 30 business days
after the date on which such Registration Statement was declared
effective by the Commission, New Notes in exchange for all Notes
tendered prior thereto in the Exchange Offer. The Exchange Offer shall
be on the appropriate form permitting registration of the New Notes to
be offered in exchange for the Transfer Restricted Securities and to
permit resales of the New Notes held by Broker-Dealers as contemplated
by Section 3(c) below. The 90, 180 and 30 business day periods referred
to in (i), (ii) and (iii) of this Section 3(a) shall not include any
period during which the Company is pursuing a Commission ruling
pursuant to Section 6(a)(i) below.
(b) The Company shall use its reasonable best efforts to
cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for a period of not
less than the minimum period required under applicable federal and
state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 business
days. The Company shall cause the Exchange Offer to comply in all
material respects with all applicable federal and state securities
laws. No securities other than the New Notes shall be included in the
Exchange Offer Registration Statement. The Company shall use its
reasonable best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than 30 business
days thereafter.
(c) The Company shall indicate in a "Plan of Distribution"
section contained in the Prospectus contained in the Exchange Offer
Registration Statement that any Broker-Dealer who holds Transfer
Restricted Securities that were acquired for its own account as a
result of market-making activities or other trading activities (other
than Transfer Restricted Securities acquired directly from the Company
or any affiliate of the Company) may exchange such Transfer Restricted
Securities pursuant to the
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Exchange Offer; however, such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the New Notes received
by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of
the Prospectus contained in the Exchange Offer Registration Statement.
Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of New Notes held by any such
Broker-Dealer except to the extent required by the Commission as a
result of a change in policy announced after the date of this
Agreement.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of New Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period of the earlier of
180 days from the date on which the Exchange Offer Registration Statement is
declared effective and the date the Broker-Dealers have advised the Company they
have sold all such New Notes.
The Company shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such period in order to facilitate such resales.
4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company is not required
to file an Exchange Offer Registration Statement or permitted to
consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with) or (ii) if any
Holder of Transfer Restricted Securities shall notify the Company prior
to the 20th business day following the Consummation of the Exchange
Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer or (B) that
such Holder may not resell the New Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales by such Holder or (C)
that such Holder is a Broker-Dealer and owns the Notes acquired
directly from the Company or one of its affiliates, then the Company
shall in lieu of, or in the event of (ii) above, in addition to,
effecting the registration of the New Notes pursuant to the Exchange
Offer Registration Statement use its reasonable best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which
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may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earlier to occur of (1) the
90th day after the date on which the Company determines that
it is not required to file the Exchange Offer Registration
Statement or permitted to consummate the Exchange Offer as
contemplated by clause (i) above or (2) the 90th day after the
date on which the Company receives notice from a Holder of
Transfer Restricted Securities as contemplated by clause (ii)
above (such earlier date being the "Shelf Filing Deadline"),
which Shelf Registration Statement shall provide for resales
of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to
Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 90th day
after the Shelf Filing Deadline.
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended
as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by
the Holders of Transfer Restricted Securities entitled to the benefit
of this Section 4(a) and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time,
for a period ending on the second anniversary of the Closing Date (or
such shorter period as may hereafter be referred to in Rule 144(k)
under the Securities Act).
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN
CONNECTION WITH THE SHELF REGISTRATION STATEMENT. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 business days after receipt of a request therefor,
such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 5 hereof unless and until such Holder shall have used its
best efforts to provide all such reasonably requested information. Each
Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to
the Company by such Holder not materially misleading.
5. LIQUIDATED
(a) If (a) any of the Registration Statements required by
this Agreement is not filed with the Commission on or prior to the date
specified for such filing in this Agreement, (b) any of such Registration
Statements has not been declared effective by the
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Commission on or prior to the date specified for such effectiveness in this
Agreement (the "Effectiveness Target Date"), (c) the Exchange Offer has not been
Consummated within 30 business days after the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement or (d) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose
without being succeeded within five business days by a post-effective amendment
to such Registration Statement that cures such failure and that is itself
promptly declared effective (each such event referred to in clauses (a) through
(d), a "Registration Default"), additional cash interest ("Liquidated Damages")
shall accrue to each Holder of the Notes commencing upon the occurrence of such
Registration Default in an amount equal to $.05 per week per $1,000 principal
amount of Notes held by such Holder during the 90 day period following the
occurrence of such Registration Default. The amount of Liquidated Damages will
increase by an additional $.05 per week per $1,000 principal amount of Notes
with respect to each subsequent 90-day period until all Registration Defaults
have been cured, up to a maximum amount of Liquidated Damages for all
Registration Defaults of $.50 per week per $1,000 principal amount of Notes. All
accrued Liquidated Damages shall be paid to Holders by the Company in the same
manner as interest is made pursuant to the Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
All obligations of the Company set forth in the preceding
paragraph that have accrued and are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in full.
(b) The Company shall notify the Trustee within one business
day after each and every date on which an event occurs in respect of which
Liquidated Damages are required to be paid (an "Event Date"). Liquidated Damages
shall be paid by depositing Liquidated Damages with the Trustee, for the benefit
of the Holders of the Notes, on or before the applicable Interest Payment Date
(as defined in the Indenture) for the Notes (whether or not any payment other
than Liquidated Damages is payable on such Notes) in immediately available funds
in sums sufficient to pay the Liquidated Damages then due to such Holders. Each
obligation to pay Liquidated Damages shall be deemed to accrue from the
applicable date of the occurrence of the Registration Default.
6. REGISTRATION
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection
with the Exchange Offer, the Company shall comply with all of the
provisions of Section 6(c) below, shall use its reasonable best efforts
to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods
of distribution thereof, and shall comply with all of the following
provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer
is permitted by applicable law, the Company hereby agrees to
seek a no-action letter or other favorable
8
decision from the Commission allowing the Company to
Consummate the Exchange Offer for such Notes, provided that
the Company need not pursue such no-action letter or other
decision if in the reasonable opinion of counsel to the
Company there is no reasonable prospect for success in this
regard. Subject to the foregoing, the Company hereby agrees to
pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.
Subject to the foregoing, the Company hereby agrees, however,
to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such
an Exchange Offer should be permitted and (C) diligently
pursue a resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the Consummation thereof,
a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A)
it is not an affiliate of the Company, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement
or understanding with any person to participate in, a
distribution of the New Notes to be issued in the Exchange
Offer and (C) it is acquiring the New Notes in its ordinary
course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the
Company's preparations for the Exchange Offer. The parties
hereto acknowledge and agree that any Broker-Dealer and any
Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange
Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the
Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND CO., INC.
(available June 5, 1991) and EXXON CAPITAL HOLDINGS
CORPORATION (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including ▇▇▇▇▇ & ▇▇▇▇ LLP
(available February 7, 1997), and any no-action letter
obtained pursuant to clause (i) above) and (2) must comply
with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction
should be covered by an effective registration statement
containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the
resales are of New Notes obtained by such Holder in exchange
for Notes acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a
supplemental letter to the Commission (A) stating that the
Company is registering the Exchange Offer in reliance on the
position of the Commission enunciated in EXXON CAPITAL
HOLDINGS
9
CORPORATION (available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND CO.,
Inc. (available June 5, 1991), ▇▇▇▇▇ & WOOD LLP (available
February 7, 1997) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including a
representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the
New Notes to be received in the Exchange Offer and that, to
the best of the Company's information and belief and based on
the representations of Holders of Transferred Securities
pursuant to clause (ii) above, each Holder participating in
the Exchange Offer is acquiring the New Notes in its ordinary
course of business and has no arrangement or understanding
with any Person to participate in the distribution of the New
Notes received in the Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the
Shelf Registration Statement, the Company shall comply with all the
applicable provisions of Section 6(c) below and shall use its
reasonable best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant
thereto the Company will, in accordance with the terms hereof, prepare
and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which
form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof.
(c) GENERAL PROVISIONS. In connection with any
Registration Statement and any Prospectus required by this Agreement to
permit the sale or resale of Transfer Restricted Securities (including,
without limitation, any Registration Statement and the related
Prospectus required to permit resales of Notes by Broker-Dealers), the
Company shall:
(i) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable, or such
shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been
sold; upon the occurrence of any event that would cause any
such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or material
omission or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by
this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and,
in the case of either clause (A) or (B), use its reasonable
best efforts to cause such amendment to be declared effective
and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period
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set forth in Section 3 or 4 hereof, as applicable, or such
shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) in the case of a Shelf Registration, advise the
underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, to confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding
purposes, or (D) of the existence of any fact or the happening
of any event as a result of which the Registration Statement,
the Prospectus, any amendment or supplement thereto or any
document incorporated by reference would include any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration
Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws,
the Company shall use its reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest
possible time;
(iv) in the case of a Shelf Registration, furnish to
each of the selling or exchanging Holders and each of the
underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to
the review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Company will
not file any such Registration Statement or Prospectus or any
amendment or
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supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to
which selling Holders of a majority in aggregate principal
amount of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall
reasonably object within five business days after the receipt
thereof. A selling Holder or underwriter, if any, shall be
deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains a material
misstatement or material omission;
(v) in the case of a Shelf Registration, (subject
to entering into a confidentiality arrangement which is
reasonably satisfactory to the Company) (i) make available at
reasonable times for inspection by the selling Holders, any
underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s),
at the offices where normally kept, during the Company's
normal business hours, all financial and other records,
pertinent corporate documents and properties of the Company
and (ii) cause the Company's officers, directors, managers and
employees to supply all relevant information reasonably
requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its
effectiveness;
(vi) in the case of a Shelf Registration, if
requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such relevant information as such
selling Holders and underwriter(s), if any, may reasonably
request to have included therein, including, without
limitation, information relating to the "Plan of Distribution"
of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase
price being paid therefor and any other terms of the offering
of the Transfer Restricted Securities to be sold in such
offering, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(vii) in the case of a Shelf Registration, furnish to
each selling Holder and each of the underwriter(s), if any,
without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each
amendment thereto, including upon request all documents
incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(viii) in the case of a Shelf Registration, deliver to
each selling Holder and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment
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or supplement thereto as such Persons reasonably may request;
the Company hereby consents to the use of the Prospectus and
any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or
supplement thereto;
(ix) in the case of a Shelf Registration, enter into
such agreements (including an underwriting agreement) and make
such representations and warranties and take all such other
actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted
Securities pursuant to any Registration Statement contemplated
by this Agreement, all to such extent as may be reasonably
requested by the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities or any
underwriter in connection with any sale or resale pursuant to
any Registration Statement contemplated by this Agreement, and
in connection with an Underwritten Registration, the Company
shall:
(A) upon request by the Holders of an
aggregate principal amount of Transfer Restricted
Securities or any underwriter, furnish to each
selling Holder and each underwriter, if any, in such
substance and scope as they may request and as are
customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of the
effectiveness of the Shelf Registration
Statement, signed by (y) the Chairman of the
Board, its President or a Vice President and
(z) the Chief Financial Officer of the Company,
confirming, as of the date thereof, such
matters as such parties may reasonably request;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration
Statement, of counsel for the Company, covering
such matters as such parties may reasonably
request (it being agreed that the matters to be
covered by such opinion may be subject to
customary qualifications and exceptions), and
in any event including a statement to the
effect that such counsel has participated in
conferences with officers and other
representatives of the Company and
representatives of the independent public
accountants for the Company in connection with
the preparation of such Registration Statement
and the related Prospectus and have considered
the matters required to be stated therein and
the statements contained therein, although such
counsel has not independently verified the
accuracy, completeness or fairness of such
statements, and that such counsel advises that,
on the basis of the foregoing, no facts came to
such counsel's attention that caused such
counsel to
13
believe that the applicable Registration
Statement, at the time such Registration
Statement or any post-effective amendment
thereto became effective, contained an untrue
statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Registration Statement as of
its date, contained an untrue statement of a
material fact or omitted to state a material
fact necessary in order to make the statements
therein, in light of the circumstances under
which they were made, not misleading. Without
limiting the foregoing, such counsel may state
further that such counsel assumes no
responsibility for, and has not independently
verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial and statistical
data included or omitted in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated
the date of the effectiveness of the Shelf
Registration Statement, from the Company's
independent public accountants, in the
customary form and covering matters of the type
customarily covered in comfort letters to
underwriters in connection with underwritten
offerings.
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section
8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Company pursuant to this clause (xi), if
any.
If at any time the representations and
warranties of the Company contemplated in clause (A)(1) above
cease to be true and correct, the Company shall so advise the
Initial Purchasers and the underwriter(s), if any, and each
selling Holder promptly and, if requested by such Persons,
shall confirm such advice in writing.
(x) in the case of a Shelf Registration, prior
to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may
reasonably request and do any and all other acts or things
14
reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided,
however, that the Company shall not be required to register or
qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xi) in the case of a Shelf Registration,
shall issue, upon the request of any Holder of Notes covered
by the Shelf Registration Statement, New Notes in the same
principal amount as the Notes surrendered to the Company by
such Holder in exchange therefor or being sold by such Holder,
such New Notes to be registered in the name of such Holder or
in the name of the purchaser(s) of such Notes; in return, the
Notes held by such Holder shall be surrendered to the Company
for cancellation;
(xii) in the case of a Shelf Registration,
cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends regarding
securities laws and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as
the Holders or the underwriter(s), if any, may request at
least two business days prior to any sale of Transfer
Restricted Securities pursuant to such Shelf Registration;
(xiii) use its reasonable best efforts to
cause the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be
necessary to enable the Holders or the underwriter(s), if any,
to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (x)
above;
(xiv) if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred, prepare
a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(xv) provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide certificates for the
Transfer Restricted Securities;
(xvi) reasonably cooperate and assist in any
filings required to be made with the NASD by any underwriter
of Transfer Restricted Securities pursuant hereto;
15
(xvii) otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of
the Commission, and make generally available to its security
holders, as soon as reasonably practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which
need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or
best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified
under the TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance
with the terms of the TIA, and execute and use its reasonable
best efforts to cause the Trustee to execute all documents
that may be required to effect such changes and all other
forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely
manner; and
(xix) provide promptly to each Holder upon
request each document filed with the Commission pursuant to
the requirements of Section 13 and Section 15 of the Exchange
Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xiv)
hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies
of any revised Prospectus and additional or supplemental filings that
are incorporated by reference in the Prospectus. If so directed by the
Company, each Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set
forth in Section 3 or 4 hereof, as applicable, shall be extended by the
number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and
including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xiv)
hereof or shall have received the Advice.
16
7. REGISTRATION EXPENSES.
All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses
(including filings made by any Purchaser or Holder with the NASD (and,
if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the New
Notes to be issued in the Exchange Offer and printing of Prospectuses),
and associated messenger and delivery services and telephone expenses;
(iv) all fees and disbursements of counsel for the Company; (v) all
application and filing fees in connection with any listing of the New
Notes on a national securities exchange or automated quotation system;
and (vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company.
Each Holder shall pay all expenses of its counsel and any
other advisors or experts, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Transfer Restricted Securities pursuant to a Shelf
Registration Statement, if any.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or Initial Purchaser,
as applicable, who seeks to sell New Notes, the Company shall indemnify and hold
harmless each Holder of Transfer Restricted Securities included within any such
Shelf Registration Statement and each such participating Broker-Dealer or
Initial Purchaser selling New Notes and each person, if any, who controls any
such person within the meaning of Section 15 of the Securities Act (each, a
"Participant") from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof to which such Participant or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any such Registration Statement or any preliminary
Prospectus or Prospectus or any amendment or supplement thereto or (B) in any
Blue Sky Application or other document prepared or executed by the Company (or
based upon any written information furnished by the Company) specifically for
the purpose of qualifying any or all of the New Notes under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), or (ii) the
omission or alleged
17
omission to state in any preliminary Prospectus, Registration Statement or
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading and shall reimburse each Participant promptly upon demand for any
legal or other expenses reasonably incurred by such Participant in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that (i) the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any such Registration Statement or any prospectus
forming part thereof, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Participant specifically for
inclusion therein; and provided further that as to any preliminary Prospectus,
the indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any such Participant on account of any loss, claim, damage, liability
or action arising from the sale of the New Notes to any person by that
Participant if (A) (i) that Participant failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act and (ii) the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary Prospectus was corrected in the Prospectus,
unless, in each case, such failure resulted from non-compliance by the Company
with Section 6(c) or (B) the Participant breached its obligation pursuant to the
first sentence of the last paragraph of Section 6 hereof. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Participant or to any controlling person of that
Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors, officers,
employees or agents and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer, employee or agent or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any preliminary
Prospectus, Registration Statement or Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of that Participant
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer, employees or agents or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director, officer,
employee or agent or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
18
addition to any liability which any Participant may otherwise have to the
Company or any such director, officer, employee, agent or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8
(except to the extent so provided in any such other obligation). If any such
claim or action shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the indemnified party shall have the right to employ separate counsel to
represent jointly the indemnified party and those other Participants and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Participants against the indemnifying party under this Section 8 but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless, (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one counsel (in addition to
local counsel). Each indemnified party, as a condition of the indemnity
agreements contained in Section 8, shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action, compromise of any action or any judgment with
respect to any action the entry of which was consented to, effected without its
19
written consent, but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party, to the extent set forth
herein, from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the Company
on the one hand and the Participants on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Participants, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Participants agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to contribute
any amount in excess of the amount by which proceeds received by such
Participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Participants'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
9. RULE 144A.
The Company hereby agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
20
10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company.
12. MISCELLANEOUS.
(a) REMEDIES. The Company agrees that monetary damages
(including Liquidated Damages) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on
or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights granted
to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company's securities under any agreement
in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect
to the Notes that would materially and adversely affect the ability of
the Holders to Consummate any Exchange Offer unless such action or
change is required by applicable law.
(d) AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the
rights of other Holders whose securities are not being tendered
pursuant to such Exchange Offer may be given by the Holders of a
21
majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(e) NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address of such Holder
maintained by the Registrar under the Indenture; and
(ii) if to the Company:
Ocwen Asset Investment Corp.
The Forum, Suite 1000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the
same to the Trustee at the address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need for
an express assignment, subsequent Holders of Transfer Restricted
Securities; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer
Restricted Securities from such Holder.
22
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(j) SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the
other transaction documents is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration rights
granted by the Company with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
(l) REQUIRED CONSENTS. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is
required hereunder, Transfer Restricted Securities held by the Company
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.
23
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
OCWEN ASSET INVESTMENT CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Accepted as of the date thereof
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INC.
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director