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EXHIBIT 10.3
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 13, 1998
BY AND AMONG
METAL MANAGEMENT, INC.,
AS ISSUER,
Aerospace Metals, Inc., American Scrap Processing, Inc., Briquetting Corporation
of America, C. Shredding Corp., California Metals Recycling, Inc., CIM Trucking,
Inc., Cometco Corp., ▇▇▇▇▇ Building Corporation, ▇▇▇▇▇ Iron & Metal, Inc., EMCO
Trading, Inc., Ferrex Trading Corporation, Firma, Inc., Firma Plastic Co., Inc.,
Houston Compressed Steel Corp., HouTex Metals Company, Inc., The ▇▇▇▇▇
Corporation, ▇. ▇▇▇▇▇▇ Iron & Metal, Inc., Kankakee Scrap Corporation, ▇▇▇▇▇▇▇
Metals Co., Metal Management Arizona, Inc., Metal Management Realty, Inc., 138
Scrap Acquisition Corp., Paulding Recycling, Inc., Proler Southwest Inc., Proler
Steelworks L.L.C., Reserve Iron & Metal Limited Partnership, Salt River
Recycling, L.L.C., Scrap Processing, Inc., Superior Forge, Inc., Trojan Trading
Co., USA Southwestern Carriers, Inc.,
as Guarantors,
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
BT Alex. ▇▇▇▇▇ Incorporated
Salomon Brothers Inc,
as Initial Purchasers
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This Exchange and Registration Rights Agreement (this "Agreement") is made
and entered into as of May 13, 1998, by and among Metal Management, Inc., (the
"Company"); Aerospace Metals, Inc., American Scrap Processing, Inc., Briquetting
Corporation of America, C Shredding Corp., California Metals Recycling, Inc.,
CIM Trucking, Inc., Cometco Corp., ▇▇▇▇▇ Building Corporation, ▇▇▇▇▇ Iron &
Metal, Inc., EMCO Trading, Inc., Ferrex Trading Corporation, Firma, Inc., Firma
Plastic Co., Inc., Houston Compressed Steel Corp., HouTex Metals Company, Inc.,
The ▇▇▇▇▇ Corporation, ▇. ▇▇▇▇▇▇ Iron & Metal, Inc., Kankakee Scrap Corporation,
▇▇▇▇▇▇▇ Metals Co., Metal Management Arizona, Inc., Metal Management Realty,
Inc., 138 Scrap Acquisition Corp., Paulding Recycling, Inc., Proler Southwest
Inc., Proler Steelworks L.L.C., Reserve Iron & Metal Limited Partnership, Salt
River Recycling, L.L.C., Scrap Processing, Inc., Superior Forge, Inc., Trojan
Trading Co. and USA Southwestern Carriers, Inc. (each a "Guarantor" and
collectively, the "Guarantors"); and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., BT Alex. ▇▇▇▇▇
Incorporated and Salomon Brothers Inc (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers"), each of whom has agreed to purchase the
Company's 10% Senior Subordinated Notes due 2008 (the "Subordinated Notes")
pursuant to the Purchase Agreement dated May 8, 1998 (the "Purchase Agreement"),
by and among the Company, the Guarantors and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Subordinated Notes, the Company
and the Guarantors have agreed to provide the exchange and registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 2 of
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:
Act: The Securities Act of 1933, as amended.
Business Day: Any day, except a Saturday, Sunday or other day in The
City of New York, or in the city of the Corporate Trust Office (as defined
in the Indenture) of the Trustee, on which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Broker-Dealer Transfer Restricted Securities: Exchange Notes that are
acquired by a Broker-Dealer in the Exchange Offer in exchange for
Subordinated Notes that such Broker-Dealer acquired for its own account as
a result of market-making activities or other trading activities (other
than Subordinated Notes acquired directly from the Company or any of its
affiliates).
Certificated Securities: As defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
declaration of effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the
Exchange Offer and the related Guarantees, (b) 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 (c) the delivery by the Company to the
registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Subordinated Notes
tendered by Holders thereof pursuant to the Exchange Offer and the issuance
of the related Guarantees by the Guarantors.
Damages Payment Date: With respect to the Subordinated Notes, each
Interest Payment Date.
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Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Company's 10% Senior Subordinated Notes due 2008
to be issued pursuant to the Indenture in the Exchange Offer.
Exchange Offer: The registration by the Company and the Guarantors
under the Act of the Exchange Notes and the related Guarantees pursuant to
the Exchange Offer 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 for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered
in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Subordinated Notes (i) to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the Act,
and/or (ii) in one or more offshore transactions complying with Rule 903 or
904 of Regulation S under the Act.
Global Note Holder: As defined in the Indenture.
Guarantees: The guarantees of the Notes to be issued by the Guarantors
pursuant to the Indenture.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of the Closing Date, among the
Company, the Guarantors and LaSalle National Bank, as trustee (the
"Trustee"), pursuant to which the Notes and the Guarantees are to be
issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Subordinated Notes and the Exchange Notes.
Person: An individual, partnership, limited liability company,
corporation, trust, unincorporated organization or a government or agency
or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated
by reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date, each Person
who is a Holder of Notes on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and
the Guarantors relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities and the related Guarantees pursuant to the Shelf Registration
Statement, in each case, (i) which is filed pursuant to the provisions of
this Agreement and (ii) including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments)
and all exhibits and material incorporated by reference therein.
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Restricted Broker-Dealer: Any Broker-Dealer that holds Broker-Dealer
Transfer Restricted Securities.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939, as in effect on the date of the
Indenture.
Transfer Restricted Securities: Each Note until (i) the date on which
such Note has been exchanged by a Person other than a Broker-Dealer for an
Exchange Note in the Exchange Offer, (ii) following the exchange by a
Broker-Dealer in the Exchange Offer of a Note for an Exchange Note, the
date on which such Exchange Note is 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, (iii)
the date on which such Note has been effectively registered under the Act
and disposed of in accordance with the Shelf Registration Statement or (iv)
the date on which such Note is distributed to the public pursuant to Rule
144 under the Act.
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.
3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a) below have been complied
with), the Company and the Guarantors shall (i) cause to be filed with the
Commission on or prior to 60 days after the Closing Date, the Exchange Offer
Registration Statement, (ii) use their respective commercially reasonable
efforts to cause such Exchange Offer Registration Statement to be declared
effective on or prior to 135 days after the date on which such Exchange Offer
Registration Statement is filed with the Commission (which 135-day period shall
be extended for a number of days equal to the number of Business Days, if any,
that the Commission is officially closed during such period), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification of the
Exchange Notes and the related Guarantees to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange Offer
and (iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer Registration
Statement shall be on the appropriate form promulgated by the Commission under
the Act permitting registration of the Exchange Notes and the related Guarantees
to be offered in exchange for the Subordinated Notes that are Transfer
Restricted Securities and the related Guarantees and to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their respective commercially
reasonable 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,
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that in no event shall such period be less than 20 Business Days. The Company
and the Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange Notes
and the related Guarantees shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their respective
commercially reasonable efforts to cause the Exchange Offer to be Consummated on
or prior to 25 Business Days after date the Exchange Offer Registration
Statement has become effective.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Subordinated Notes that are
Transfer Restricted Securities and that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities may exchange such Subordinated Notes (other than Transfer Restricted
Securities acquired directly from the Company or any affiliate of the Company)
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of each Exchange Note 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 sales of Broker-Dealer Transfer Restricted
Securities by Restricted Broker-Dealers that the Commission may require in order
to permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer, except to the extent required by the Commission.
The Company and the Guarantors shall use their respective commercially
reasonable 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
sales of Broker-Dealer Transfer Restricted Securities by Restricted Broker-
Dealers, and to ensure that such Registration Statement conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time for a period of one year from
the date on which the Exchange Offer is declared effective.
The Company and the Guarantors shall provide sufficient copies of the
latest version of the Prospectus included in the Exchange Offer Registration
Statement to such Restricted Broker-Dealers promptly upon request at any time
during such one-year period in order to facilitate such sales.
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement with respect to the Exchange Notes 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) any Holder of Transfer
Restricted Securities shall notify the Company within 10 Business Days following
the Consummation of the Exchange Offer that (A) such Holder was prohibited by
law or Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds
Subordinated Notes acquired directly from the Company or one of its affiliates,
then the Company and the Guarantors shall (x) use their respective best efforts
to cause to be filed on or prior to 60 days after the date on which the Company
determines that it is not required to file the Exchange Offer Registration
Statement pursuant to clause (i) above or 60 days after the date on which the
Company receives the notice specified in clause (ii) above a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to the
Exchange Offer Registration Statement) (in either
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event, the "Shelf Registration Statement") relating to all Transfer Restricted
Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof and shall (y) use their respective commercially
reasonable efforts to cause such Shelf Registration Statement to become
effective as promptly as possible, but in no event later than 135 days after the
date on which the Company becomes obligated to file such Shelf Registration
Statement. The Company and the Guarantors shall use their respective
commercially reasonable efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by and subject to
the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for sales of Transfer Restricted Securities by the Holders
thereof entitled to the benefit of this Section 4(a) and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time for a
period of at least two years following the Closing Date or such shorter period
that will terminate when all Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement.
(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 five days after receipt of a request therefor,
such information specified in item 507 of Regulation S-K under the Act for use
in connection with any Shelf Registration statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information so required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading. No
Holder as to which any Shelf Registration Statement is being effected shall be
entitled to the benefits of Section 5 below unless it has complied with its
obligations under this Section 4(b).
5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the date specified for such filing in this
Agreement, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has
not been Consummated within 25 Business Days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) subject to the
provisions of Section 6(d) below, 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
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective immediately (each such
event referred to in clauses (i) through (iv), a "Registration Default"), then
the Company and the Guarantors hereby jointly and severally agree to pay
liquidated damages to each Holder of Transfer Restricted Securities affected by
such Registration Default with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted Securities
affected by such Registration Default held by such Holder for each week or
portion thereof that the Registration Default continues. The amount of the
liquidated damages shall increase by an additional $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities affected by such Registration
Default with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.50
per week per $1,000 principal amount of Transfer Restricted Securities. All
accrued Liquidated Damages will be paid by the Company in cash on each Damages
Payment Date to the Global Note Holder (and any Holder of Certified Securities
who has given wire transfer instructions to the Company prior to the Damages
Payment Date) by wire transfer of immediately available funds and to all other
Holders of Certified Securities by mailing checks to their registered addresses.
Following the cure of all Registration Defaults relating to any particular
Transfer
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Restricted Securities, the accrual of liquidated damages with respect to such
Transfer Restricted Securities will cease.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that 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
security shall have been satisfied in full.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company and the Guarantors shall comply with all applicable
provisions of Section 6(c) below, shall use their respective commercially
reasonable efforts to effect such exchange and to permit the sale of
Broker-Dealer 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, following the date hereof there has been promulgated a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, such that in the reasonable opinion of counsel to the Company there
is a substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company and the Guarantors hereby agree to seek
a no-action letter or other favorable decision from the Commission allowing
the Company and the Guarantors to Consummate an Exchange Offer for such
Subordinated Notes. The Company and the Guarantors hereby agree to pursue
the issuance of such a decision to the Commission staff level, but shall
not be required to take commercially unreasonable action to obtain such
no-action letter or favorable decision. In connection with the foregoing,
the Company and the Guarantors hereby agree to take all such other actions
as are reasonably requested by the Commission or otherwise reasonably
required in connection with the issuance of such decision, including,
without limitation, (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which
such counsel believes that such an Exchange Offer should be permitted and
(C) diligently pursuing a resolution 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 of the Exchange Offer, a written representation to the Company
and the Guarantors (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 Exchange Notes to
be issued in the Exchange Offer, (C) it is acquiring the Exchange Notes in
its ordinary course of business and (D) if it is a Broker-Dealer holding
Subordinated Notes acquired for its own account as a result of
market-making activities or other trading activities, then it will deliver
a prospectus meeting the requirements of the Act in connection with any
resale of Exchange Notes received in respect of such Subordinated Notes
pursuant to the Exchange Offer; provided, however, that by so representing
and by delivering a prospectus, such Broker-Dealer will not be deemed to
admit that it is an "underwriter" of the Notes within the meaning of the
Act. Each Holder hereby acknowledges and agrees that any Broker-Dealer and
any such 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
(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, if
applicable, any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus
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delivery requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must be covered by
an effective registration statement containing required information with
respect to the selling securityholder if the resales are of Exchange Notes
obtained by such Holder in exchange for Subordinated Notes acquired by such
Holder directly from the Company or an affiliate thereof or as a result of
market-making activities or other trading activities.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement and except to the extent that the Commission may otherwise
require, the Company and the Guarantors shall provide a supplemental letter
to the Commission (A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (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, if applicable, any
no-action letter obtained pursuant to clause (i) above), (B) including
representations that (1) neither the Company nor any Guarantor has entered
into any arrangement or understanding with any Person to distribute the
Exchange Notes to be received in the Exchange Offer, (2) to the best of the
Company's and each Guarantor's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange Notes
received in the Exchange Offer and (3) the Company and the Guarantors will
make each Person participating in the Exchange Offer aware (through the
Exchange Offer Prospectus) that any Broker-Dealer who holds Subordinated
Notes acquired for its own account as a result of market-making activities
or other trading activities, and who receives Exchange Notes in exchange
for such Subordinated Notes pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a prospectus meeting the
requirements of the Act in connection with any resale of such Exchange
Notes and (C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to clause
(i) above.
(b) Shelf Registration Statement. In connection with any Shelf Registration
Statement required to be filed by the Company and the Guarantors, the Company
and the Guarantors shall comply with all the provisions of Section 6(c) below
and shall use their respective commercially reasonable 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 (as
indicated in the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company and the Guarantors will prepare and
file with the Commission a Registration Statement relating to the registration
on any appropriate form under the 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 within the time periods and otherwise
in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any Exchange
Offer Registration Statement and the related Prospectus, to the extent that the
same are required to be available to permit sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers), the Company and the
Guarantors shall:
(i) use their respective commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or any regulation
thereunder, financial statements of any Guarantor) for the period specified
in Section 3 or 4 of this Agreement, as applicable. 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
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and
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the Guarantors shall file promptly an appropriate amendment to such
Registration Statement, (1) in the case of clause (A), correcting any such
misstatement or omission and (2) in the case of clauses (A) and (B), use
their respective commercially reasonable efforts to cause such amendment or
Registration Statement 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 to the
Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 3 or 4
hereof, 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, filed pursuant to Rule 424 under the
Act, and to comply fully with Rules 424, 430A and 462, as applicable, under
the Act in a timely manner; and comply with the provisions of the 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) advise the Trustee and, if requested, confirming such advice in
writing, 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;
and advise the underwriter(s), if any, and selling Holders promptly and, if
requested by such Persons, confirming such advice in writing, (A) of any
request by the Commission for any post-effective amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
(B) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the 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 (C)
of the happening of any event or the existence of any state of facts that
makes any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue (which has not been corrected by
the filing of a document incorporated by reference therein), or that
requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at anytime the Commission
shall issue any stop order suspending the effectiveness of the Registration
Statement under the Act, 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 and the Guarantors shall use
their respective commercially reasonable efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(iv) furnish to each selling Holder specifically named in any
Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, on or 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 and comment of such Holders and underwriter(s) in
connection with such sale, if any, for a period of at least two Business
Days, and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which such selling Holders of the Transfer Restricted
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Securities covered by such Registration Statement or the underwriter(s) in
connection with such sale, if any, shall reasonably object within two
Business Days after the receipt thereof;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Shelf Registration Statement or related
Prospectus, provide copies of such document to each selling Holder
specifically named therein and to the underwriter(s) in connection with
such sale, if any, make the Company's and the Guarantors' representatives
available for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the filing
thereof as such selling Holders or underwriter(s), if any, reasonably may
request;
(vi) make available at reasonable times for inspection by any
Restricted Broker-Dealers, any selling Holders named in any Shelf
Registration Statement, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders, Restricted Broker-Dealers or any of such
underwriter(s) all relevant financial and other records, pertinent
corporate documents and properties of the Company and the Guarantors and
cause the Company's and the Guarantors' officers, directors and employees
to supply all relevant information reasonably requested by any such Holder,
Restricted Broker-Dealer, underwriter, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders named in any Shelf
Registration Statement or the underwriter(s) in connection with such sale,
if any, promptly include in any such Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein relating to such Holders and
underwriter(s), if any, and the disposition of the related Transfer
Restricted Securities, 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 included in
such Prospectus supplement or post-effective amendment;
(viii) deliver to each selling Holder and each of the underwriter(s)
in connection with such sale, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request in writing; the
Company and the Guarantors hereby consent to the use of any preliminary
prospectus, 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
but only in a manner consistent with the matters set forth under "Plan of
Distribution" therein;
(ix) enter into such agreements (including, in the case of an
Underwritten Registration, 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 as may be reasonably requested by any Holder
of Transfer Restricted Securities or underwriter in connection with any
sale or resale pursuant to any Registration Statement contemplated by this
Agreement, and in such connection, whether or not an underwriting agreement
is entered into and whether or not the registration is an Underwritten
Registration, the Company and the Guarantors shall upon request:
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(A) furnish to each selling Holder specifically named in any Shelf
Registration Statement and each underwriter, if any, in such substance
and scope as they may reasonably request and (in the case of any
Underwritten Registration) as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the effectiveness
of any Shelf Registration Statement and to any Restricted Broker-Dealer
who so requests upon Consummation of the Exchange Offer:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, signed on behalf of the Company and
each Guarantor by (x) the Chief Executive Officer, the President or
any Vice President and (y) a principal financial or accounting
officer of the Company and such Guarantor, confirming, as of the date
thereof, the matters set forth in the first paragraph and in
subsections (d) and (e) of Section 7 of the Purchase Agreement, as
the same apply to any Registration Statement or Prospectus and the
other matters addressed in such paragraph and subsections, and such
other similar matters as such Holders, underwriter(s) and/or
Restricted Broker-Dealers may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Company and the
Guarantors covering matters similar to those set forth in paragraph
(b) of Section 7 of the Purchase Agreement, as the same apply to any
Registration Statement or Prospectus and the other matters addressed
in such paragraph, and such other matters as such Holders,
underwriter(s) and/or Restricted Broker-Dealers may reasonably
request, and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may be, from the
Company's and the Guarantors' independent accountants, in the
customary form and covering matters of the type customarily covered
in comfort letters to underwriters in connection with primary
underwritten offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7 of the Purchase
Agreement, without exception, as the same apply to any Registration
Statement or Prospectus and the other matters addressed in such
Section;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or resale
pursuant to any Shelf Registration Statement relating to an Underwritten
Offering 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 the selling Holders specifically named in any
Shelf Registration Statement, the underwriter(s), if any, and Restricted
Broker-Dealers, if any, to evidence compliance with clause (A) above and
with any customary conditions contained in any underwriting agreement or
other agreement entered into by the Company and the Guarantors pursuant
to this clause (ix). The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties of the
Company and the Guarantors contemplated in (A)(1) above cease to be true
and correct, the Company and the Guarantors shall so advise the
underwriter(s), if any, the selling Holders and any Restricted Broker-
Dealer promptly and, if requested by such Persons, shall confirm such
advice in writing;
(x) 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
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underwriter(s), if any, may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that neither
the Company nor any Guarantor shall 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) issue, upon the request of any Holder of Subordinated Notes
covered by any Shelf Registration Statement contemplated by this
Agreement and the surrender for cancellation of the Subordinated
Notes held by such Holder, Exchange Notes having an aggregate
principal amount equal to the aggregate principal amount of
Subordinated Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Notes
to be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be;
(xii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being
Transfer Restricted Securities (other than with respect to the
consummation of the Exchange Offer), 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; and to register such Transfer Restricted Securities in such
denominations and such names as the Holders or the underwriter(s), if
any, may request at least two Business Days prior to such sale of
Transfer Restricted Securities;
(xiii) use their respective commercially reasonable efforts to
cause the disposition of 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 seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted
Securities;
(xiv) if any fact or event contemplated by Section 6(c)(iii)(C)
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, in the light
of the circumstances under which they we remade, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide
the Trustee under the Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for
deposit with The Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified
independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD, and use their
respective commercially reasonable efforts to cause such Registration
Statement to become effective and approved by such governmental
agencies or authorities as may be necessary to enable the Holders
selling Transfer Restricted Securities to consummate the disposition
of such Transfer Restricted Securities;
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(xvii) otherwise use their respective commercially reasonable
efforts to comply with all applicable rules and regulations of the
Commission and make generally available to its security holders with
regard to any applicable Registration Statement, a consolidated
earnings statement meeting the requirements of Rule 158 covering a
twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of
Rule 158 under the Act);
(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 of Notes 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 commercially reasonable 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
or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of any notice from the Company
of the happening of any event or the existence of any state of facts of the kind
described in Section 6(c)(iii)(C) 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 by the Company (the "Advice") that the use of the
Prospectus may be resumed, and has received copies of any 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 any 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)(C) 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.
7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors' performance
of or compliance with this Agreement will be borne by the Company and the
Guarantors, regardless of whether a Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees and expenses
(other than filings made by any Initial 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 Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company, the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with causing the Notes to be
eligible for the PORTAL trading system of the National Association of Securities
Dealers, Inc.; and (vi) all fees and disbursements of independent certified
public accountants of the
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Company and the Guarantors (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 and the Guarantors' 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 or the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel chosen by the
Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared, provided that
such fees and disbursements shall not exceed $20,000 in the aggregate.
8. INDEMNIFICATION
(a) The Company and the Guarantors will, jointly and severally, indemnify
and hold harmless each Holder against any losses, claims, damages or
liabilities, joint or several, to which it may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon an untrue statement or
alleged untrue statement of material fact contained in any Registration
Statement or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein not misleading or (ii) arise out of or are base
upon an untrue statement or alleged untrue statement of material fact contained
in any preliminary Prospectus or Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and will
reimburse each Holder for any legal or other expenses reasonably incurred by it
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that neither the Company nor any of
the Guarantors shall be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement, preliminary Prospectus or Prospectus, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or any of the Guarantors by or on behalf of
any of the Holders expressly for inclusion therein.
(b) Each Holder and each underwriter named in any underwriting agreement
entered into in connection with an Underwritten Offering will, severally and not
jointly, indemnify and hold harmless the Company and the Guarantors against any
losses, claims, damages or liabilities to which the Company or any of the
Guarantors may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (i) arise
out of or are based upon an untrue statement or alleged untrue statement of
material fact contained in any Registration Statement or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading or (ii) arise out of or are based upon an untrue
statement or alleged untrue statement of material fact contained in any
preliminary Prospectus or Prospectus or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Registration
Statement, preliminary Prospectus or Prospectus, or any such amendment or
supplement, in reliance
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upon and in conformity with written information furnished to the Company or any
of the Guarantors by such Holder or such underwriter expressly for use therein;
and will reimburse the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company or the Guarantors in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
thereunder unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the
Company and the Guarantors, on the one hand, and of such Holder, on the other,
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the Guarantors,
on the one hand, or the Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Guarantors and each Holder agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include 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 Holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such Holder from the sale of any Transfer Restricted Securities
(after deducting any fees, discounts and commissions applicable thereto) exceeds
the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission, and no
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underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Transfer Restricted Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Holders' and any underwriters' obligations in this
Section 8(d) to contribute shall be several in proportion to the respective
principal amounts of Transfer Restricted Securities held or underwritten, as the
case may be, by them and not joint.
(e) The obligations of the Company and the Guarantors under this Section 8
shall be in addition to any liability that the Company and the Guarantors may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each Holder, agent and underwriter, if any, and
each Person, if any, who controls any Holder, agent or underwriter within the
meaning of the Act; and the obligations of the Holders and any underwriters
contemplated by this Section 8 shall be in addition to any liability which the
respective Holder or underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company or any
Guarantor and to each Person, if any, who controls the Company or any Guarantor
within the meaning of the Act.
9. RULE 144A
The Company and the Guarantors hereby agree with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
during which the Company or any Guarantor is not subject to Section 13 or 15(d)
of the Exchange Act, to make available, upon request of any Holder of Transfer
Restricted Securities, 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 designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
10. 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 customary underwriting arrangements entered into in
connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney and other documents required under the terms
of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment bankers
and manager or managers for any Underwritten Offering that will administer such
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. Such investment bankers and managers are referred
to herein as the "underwriters." Neither the Company nor any Guarantor shall be
liable for the payment of any underwriting fee or commission in connection with
any Underwritten Offering.
12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise all
rights provided herein, in the Indenture, the Purchase Agreement or granted by
law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company and the
Guarantors agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by them of the provisions of this
Agreement and hereby
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agree to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor will,
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 and the
Guarantors' securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. Neither the Company nor any Guarantor
will take any action intended to materially and adversely affect the ability of
the Holders to Consummate any Exchange Offer.
(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 (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, 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 majority of the outstanding principal amount of Transfer
Restricted Securities subject to such Exchange Offer.
(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 set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Guarantors:
c/o Metal Management, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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 receipt
acknowledged orally by recipient, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
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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 directly from such Holder.
(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, without regard to the
conflict of laws rules thereof.
(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. Except as to those matters governed, expressly as set
forth herein, by the Indenture or the Purchase Agreement, this Agreement 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 exchange and registration rights granted
with respect to the Transfer Restricted Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
METAL MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
AEROSPACE METALS, INC.
AMERICAN SCRAP PROCESSING, INC.
BRIQUETTING CORPORATION OF AMERICA
C. SHREDDING CORP.
CALIFORNIA METALS RECYCLING, INC.
CIM TRUCKING, INC.
COMETCO CORP.
▇▇▇▇▇ BUILDING CORPORATION
▇▇▇▇▇ IRON & METAL, INC.
EMCO TRADING, INC.
FERREX TRADING CORPORATION
FIRMA, INC.
FIRMA PLASTIC CO., INC.
HOUSTON COMPRESSED STEEL CORP.
HOUTEX METALS COMPANY, INC.
THE ▇▇▇▇▇ CORPORATION
▇. ▇▇▇▇▇▇ IRON & METAL, INC.
KANKAKEE SCRAP CORPORATION
▇▇▇▇▇▇▇ METALS CO.
METAL MANAGEMENT ARIZONA, INC.
METAL MANAGEMENT REALTY, INC.
138 SCRAP ACQUISITION CORP.
PAULDING RECYCLING, INC.
PROLER SOUTHWEST INC.
PROLER STEELWORKS L.L.C.
SALT RIVER RECYCLING, L.L.C.
SCRAP PROCESSING, INC.
SUPERIOR FORGE, INC.
TROJAN TRADING CO.
USA SOUTHWESTERN CARRIER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
RESERVE IRON & METAL LIMITED
PARTNERSHIP
By: ▇. ▇▇▇▇▇▇ IRON & METAL, INC.,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇, SACHS & CO.
BT ALEX. ▇▇▇▇▇ INCORPORATED
SALOMON BROTHERS INC
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
---------------------------------
▇▇▇▇▇▇▇, Sachs & Co.
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