EXHIBIT 4.5
EXECUTION COPY
Avondale Xxxxx, Inc.
$150,000,000
10 1/4% Senior Subordinated Notes due 2013
REGISTRATION RIGHTS AGREEMENT
June 30, 2003
Wachovia Securities, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Avondale Xxxxx, Inc., an Alabama corporation (the "Company") and
Avondale Incorporated, a Georgia corporation and the Company's parent company
(the "Guarantor"), confirm their agreement with Wachovia Securities, LLC (the
"Initial Purchaser") on the terms set forth herein.
This agreement (the "Registration Rights Agreement" or this
"Agreement") is being entered into in connection with a certain purchase
agreement, dated June 25, 2003, by and among the Company, the Guarantor and the
Initial Purchaser (the "Purchase Agreement"), which provides for the issuance
and sale by the Company to the Initial Purchaser of $150,000,000 aggregate
principal amount of the Company's 10 1/4% Senior Subordinated Notes due 2013
(the "Notes") to be unconditionally guaranteed on an unsecured senior
subordinated basis by the Guarantor (the "Note Guarantee"). In order to induce
the Initial Purchaser to enter into the Purchase Agreement, the Company and the
Guarantor have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Interest" has the meaning set forth in Section 4
hereto.
"Affiliate" means, with respect to any specified person, any
other person that, directly or indirectly, is in control of, is controlled by,
or is under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any
other day which is a legal holiday under the laws of New York, New York or is a
day on which banking institutions therein located are authorized or required by
law or other governmental action to close.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 2(c)(ii) hereof, (c) the Company's acceptance for exchange
of all Transfer Restricted Notes duly tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and (d) the delivery of Exchange Notes
by the Company to the registrar under the Indenture in the same aggregate
principal amount as the aggregate principal amount of Transfer Restricted Notes
duly tendered and not validly withdrawn by Holders thereof pursuant to the
Registered Exchange Offer and the delivery of such Exchange Notes to such
Holders. The term "Consummation" has a meaning correlative to the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Company,
guaranteed by the Guarantor, substantially identical in all material respects to
the Notes other than issue date (except that the Additional Interest provisions
and the transfer restrictions pertaining to the Notes will be modified or
eliminated, as appropriate), to be issued under the Indenture in connection with
the Registered Exchange Offer.
"Exchange Offer Registration Period" means the 180-day period
following the Consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement or during which the
Company has suspended the use of the Prospectus contained therein pursuant to
Section 2(d); provided, however, that in the event that all resales of Exchange
Notes (including, subject to the time periods set forth herein, any resales by
Participating Broker-Dealers) covered by such Exchange Offer Registration
Statement have been made, the Exchange Offer Registration Statement need not
thereafter remain continuously effective for such period.
"Exchange Offer Registration Statement" means a registration
statement of the Company and the Guarantor on an appropriate form under the Act
with respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Filing Date" has the meaning set forth in Section 2 hereto.
"Holder" means any holder from time to time of Transfer
Restricted Notes or Exchange Notes (including the Initial Purchaser).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, dated as of June 30, 2003, among the Company, the Guarantor and
Wachovia Trust Company, National Association, as trustee, as the same may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
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"Initial Purchaser" has the meaning set forth in the preamble
hereto.
"Issue Date" means June 30, 2003.
"Losses" has the meaning set forth in Section 8(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Transfer Restricted Notes; provided that if
action is being taken with respect to a Shelf Registration Statement, "Majority
Holders" means the Holders of a majority of the aggregate principal amount of
Transfer Restricted Notes registered under such Shelf Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Participating Broker-Dealer" means any Holder (which may
include the Initial Purchaser) that is a broker-dealer electing to exchange
Notes acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"Private Exchange Notes" has the meaning set forth in Section
2(g) hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act or any similar rule that may be adopted by
the Commission), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Transfer Restricted
Notes covered by such Registration Statement, and all amendments and supplements
to the Prospectus.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Notes.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Notes (including the Note Guarantee) pursuant to the provisions of
this Agreement, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto, and all material incorporated by
reference therein.
"Shelf Registration" means a registration of Transfer
Restricted Notes with the Commission effected pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(c) hereof.
"Shelf Registration Statement" means a "shelf registration
statement of the Company and the Guarantor filed pursuant to the provisions of
Section 3 hereof, which covers some or all of the Transfer Restricted Notes, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and which may be in the format of
an amendment to the Exchange Offer Registration Statement if permitted by the
Commission, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including
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the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Transfer Restricted Notes" means each Note upon original
issuance thereof and at all times subsequent thereto, each Exchange Note as to
which Section 3(a)(iii) or Section 3(a)(iv) applies upon original issuance and
at all times subsequent thereto, until in the case of any such Note or Exchange
Note, as the case may be, the earliest to occur of (i) the date on which such
Note has been exchanged by a person other than a Participating Broker-Dealer for
an Exchange Note (other than with respect to an Exchange Note as to which
Section 3(a)(iii) or Section 3(a)(iv) apply), (ii) with respect to Exchange
Notes received by Participating Broker-Dealers in the Registered Exchange Offer,
the date on which such Exchange Note has been sold by such Participating
Broker-Dealer by means of the Prospectus contained in the Exchange Offer
Registration Statement, (iii) a Shelf Registration Statement covering such Note
or Exchange Note, as the case may be, has been declared effective by the
Commission and such Note or Exchange Note, as the case may be, has been disposed
of in accordance with such effective Shelf Registration Statement, (iv) the date
on which such Note or Exchange Note, as the case may be, can be sold without any
limitations under clauses (c), (e), (f) or (h) of Rule 144 under the Act or any
similar rule that may be adopted by the Commission, (v) the date on which such
Note or Exchange Note is transferred to the public pursuant to Rule 144 under
the Act or (vi) such Note or Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the trustee with respect to the Notes or
Exchange Notes, as applicable, under the Indenture.
2. Registered Exchange Offer; Resales of Exchange Notes by
Participating Broker-Dealers; Private Exchange. (a) The Company and the
Guarantor shall use their reasonable best efforts to prepare and, not later than
90 days from the Issue Date (or, if such 90th day is not a Business Day, by the
first Business Day thereafter), file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer (the date
of such filing hereinafter referred to as the Filing Date"). The Company and the
Guarantor shall use their reasonable best efforts (i) to cause the Exchange
Offer Registration Statement to be declared effective under the Act within 170
days from the Issue Date (or, if such 170th day is not a Business Day, by the
first Business Day thereafter), and (ii) to Consummate the Registered Exchange
Offer within 200 days from the Issue Date (or, if such 200th day is not a
Business Day, by the first Business Day thereafter).
(b) The objective of the Registered Exchange Offer is to
enable each Holder electing to exchange Transfer Restricted Notes for Exchange
Notes (assuming that such Holder (x) is not an "affiliate" of the Company or the
Guarantor within the meaning of the Act, (y) is not a broker-dealer that
acquired the Transfer Restricted Notes in a transaction other than as a part of
its market-making or other trading activities and (z) if such Holder is not a
broker-dealer, acquires the Exchange Notes in the ordinary course of such
Xxxxxx's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or intentions with any person to make a
distribution of the Exchange Notes) to resell such Exchange Notes from and after
their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States. Each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company and the
Guarantor that at the time of the Consummation of the Registered Exchange Offer
each of the items listed in subsections (x), (y) and (z) of this Section 2(b) is
true with respect to such Holder.
(c) In connection with the Registered Exchange Offer, the
Company and the Guarantor shall:
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(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for
acceptance for not less than 20 Business Days (or longer if required by
applicable law) after the date notice thereof is mailed to Holders;
(iii) permit Holders to withdraw tendered Notes at any time
prior to 5:00 p.m. New York City time on the last Business Day on which
the Registered Exchange Offer shall remain open;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan,
The City of New York; and
(v) comply in all material respects with all applicable
laws relating to the Registered Exchange Offer.
(d) The Company and the Guarantor may suspend the use of the
Prospectus for valid business reasons (not including avoidance of their
obligations hereunder) to avoid premature public disclosure of a pending
corporate transaction, including pending acquisitions or divestitures of assets,
mergers and combinations and similar events; provided that (i) the Company and
the Guarantor promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable; (ii) the period during which the Registration Statement
is required to be effective and usable shall be extended by the number of days
during which such Registration Statement was not effective or usable pursuant to
the foregoing provisions; and (iii) Additional Interest with respect to Transfer
Restricted Notes shall accrue as provided in Section 4 hereof.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Company and the Guarantor shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all of the Notes
so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder Exchange Notes equal in principal amount to the Transfer
Restricted Notes of such Holder so accepted for exchange.
(f) The Initial Purchaser, the Company and the Guarantor
acknowledge that, pursuant to interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Participating Broker-Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Notes received by such Participating
Broker-Dealer pursuant to the Registered Exchange Offer in exchange for Transfer
Restricted Notes acquired for its own account as a result of market-making
activities or other trading activities. Accordingly, the Company and the
Guarantor will allow Participating Broker-Dealers and other persons, if any,
with similar prospectus delivery requirements to use the Prospectus contained in
the Exchange Offer Registration Statement during the Exchange Offer Registration
Period in connection with the resale of such Exchange Notes and shall:
(i) include the information set forth in (a) Annex A hereto on
the cover of the Prospectus
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forming a part of the Exchange Offer Registration Statement; (b) Annex
B hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Registered Exchange Offer;
(c) Annex C hereto in the plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration Statement,
and (d) Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer; and
(ii) use their reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective (subject to Section
2(d)) under the Act during the Exchange Offer Registration Period for
delivery of the Prospectus included therein by Participating
Broker-Dealers in connection with sales of Exchange Notes received
pursuant to the Registered Exchange Offer, as contemplated by Section
5(h) below.
(g) In the event that the Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Transfer Restricted Notes constituting any portion of an unsold
allotment, upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial Purchaser,
the Company and the Guarantor shall issue and deliver to the Initial Purchaser,
or to the party purchasing Transfer Restricted Notes registered under the Shelf
Registration Statement from the Initial Purchaser, in exchange for such Transfer
Restricted Notes, a like principal amount of Exchange Notes to the extent
permitted by applicable law (the "Private Exchange Notes"). The Company and the
Guarantor shall use their reasonable best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for such Private Exchange Notes as for
Exchange Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) the Company and the
Guarantor are not permitted to file the Exchange Offer Registration Statement or
to Consummate the Registered Exchange Offer because the Registered Exchange
Offer is not permitted by applicable law or Commission policy, (ii) for any
other reason the Registered Exchange Offer is not Consummated within 200 days
(or if such 200th day is not a Business Day, by the first Business Day
thereafter) of the Issue Date, (iii) the Initial Purchaser so requests with
respect to Notes acquired by it directly from the Company or the Guarantor,
which have not been resold on or prior to the 30th day (or if such 30th day is
not a Business Day, by the first Business Day thereafter) following the
Consummation of the Registered Exchange Offer, (iv) any Holder notifies the
Company on or prior to the 30th day (or if such 30th day is not a Business Day,
by the first Business Day thereafter) following the Consummation of the
Registered Exchange Offer that (A) such Holder is not eligible to participate in
the Registered Exchange Offer, due to applicable law or Commission policy, (B)
such Holder is a Participating Broker-Dealer that cannot publicly resell the
Exchange Notes that it acquires in the Registered Exchange Offer without
delivering a Prospectus and the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for resales following the
completion of the Registered Exchange Offer, or (C) the Holder is a
broker-dealer and owns Notes it has not exchanged and that it acquired directly
from the Company, the Guarantor or one of their respective Affiliates, or (v) in
the case where the Initial Purchaser participates in the Registered Exchange
Offer or acquires Private Exchange Notes pursuant to Section 2(g) hereof, the
Initial Purchaser does not receive freely tradable Exchange Notes in exchange
for Notes constituting any portion of an unsold allotment and the Initial
Purchaser notifies the Company and the Guarantor on or prior to the 30th day
following the Consummation of the Registered Exchange Offer (it being understood
that, for purposes of this Section 3, (x) the requirement that the Initial
Purchaser deliver a Prospectus containing the information required by Items 507
and/or 508 of Regulation S-K under the Act in connection with sales of Exchange
Notes acquired in exchange for such Transfer Restricted Notes shall result in
such Exchange Notes being not "freely tradable" and (y) the requirement that a
Participating Broker-Dealer deliver a Prospectus in connection with sales of
Exchange Notes acquired in the Registered Exchange Offer in exchange for
Transfer Restricted Notes acquired as a result of market-making activities or
other trading activities shall not result in such Exchange Notes being not
"freely tradable"), the following provisions shall apply:
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(b) The Company and the Guarantor shall use their reasonable
best efforts to prepare and file with the Commission a Shelf Registration
Statement prior to the 30th day (or if such 30th day is not a Business Day, by
the first Business Day thereafter) following the earliest to occur of (i) the
date on which the Company and the Guarantor determine that they are not
permitted to file the Exchange Offer Registration Statement or to Consummate the
Exchange Offer; (ii) 30 days (or if such 30th day is not a Business Day, by the
first Business Day thereafter) after the Exchange Offer Registration Statement
has been declared effective if the Registered Exchange Offer has not been
Consummated by such date and (iii) the date notice is given pursuant to Section
3(a)(iii), (iv) or (v) above (or if either such 30th day is not a Business Day,
by the first Business Day thereafter), and shall use their reasonable best
efforts to cause the Shelf Registration Statement to be declared effective by
the Commission within 60 days after such filing (or if such 60th day is not a
Business Day, by the first Business Day thereafter). With respect to Exchange
Notes received by the Initial Purchaser in exchange for Notes constituting any
portion of an unsold allotment, the Company and the Guarantor may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of their obligations under this paragraph (b) with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(c) The Company and the Guarantor shall use their reasonable
best efforts to keep such Shelf Registration Statement continuously effective
(subject to Section 3(d)) in order to permit the Prospectus forming a part
thereof to be usable by Holders until the earliest of (i) such time as the Notes
or Exchange Notes covered by the Shelf Registration Statement can be sold
without any limitations under clauses (c), (e), (f) or (h) of Rule 144 or any
similar rule that may be adopted by the Commission, (ii) two years from the date
the Shelf Registration Statement has been declared effective exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Shelf Registration Statement or during which the Company
has suspended the use of the Prospectus contained therein pursuant to Section
3(d) and (iii) such date as of which all the Transfer Restricted Notes have been
sold pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company and the Guarantor
shall be deemed not to have used their reasonable best efforts to keep the Shelf
Registration Statement effective during the Shelf Registration Period if one of
them voluntarily takes any action that would result in Holders of Transfer
Restricted Notes covered thereby not being able to offer and sell such notes
during that period, unless such action is (x) required by applicable law or (y)
pursuant to Section 3(d) hereof, and, in either case, so long as the Company and
the Guarantor promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable.
(d) The Company and the Guarantor may suspend the use of the
Prospectus for valid business reasons (not including avoidance of their
obligations hereunder) or to avoid premature public disclosure of a pending
corporate transaction, including pending acquisitions or divestitures of assets,
mergers and combinations and similar events; provided that (i) the Company and
the Guarantor promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable; (ii) the period during which the Registration Statement
is required to be effective and usable shall be extended by the number of days
during which such Registration Statement was not effective or usable pursuant to
the foregoing provisions; and (iii) Additional Interest with respect to Transfer
Restricted Notes shall accrue as provided in Section 4 hereof.
(e) No Holder of Transfer Restricted Notes may include any of
its Transfer Restricted Notes in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Company and the
Guarantor in writing, within 15 days after receipt of a request therefor, such
information as the Company and the Guarantor may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of
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Transfer Restricted Notes shall be entitled to Additional Interest pursuant to
Section 4 hereof unless and until such Holder shall have used its reasonable
best efforts to provide all such reasonably requested information. Each Holder
of Transfer Restricted Notes as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company and the Guarantor all
information required to be disclosed in order to make the information previously
furnished to the Company and the Guarantor by such Holder not misleading.
4. Additional Interest.
(a) The parties hereto agree that Holders of Transfer
Restricted Notes will suffer damages if the Company and the Guarantor fails to
perform their obligations under Section 2 or Section 3 hereof and that it would
not be feasible to ascertain the extent of such damages. Accordingly, in the
event that (i) the applicable Registration Statement is not filed with the
Commission on or prior to the date specified herein for such filing, (ii) the
applicable Registration Statement has not been declared effective by the
Commission on or prior to the date specified herein for such effectiveness after
such obligation arises, (iii) if the Registered Exchange Offer is required to be
Consummated hereunder, the Registered Exchange Offer has not been Consummated by
the Company and the Guarantor within the time period set forth in Section 2(a)
hereof, (iv) prior to the end of the Exchange Offer Registration Period or the
Shelf Registration Period, the Commission shall have issued a stop order
suspending the effectiveness of the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, or proceedings have been
initiated with respect to the Registration Statement under Section 8(d) or 8(e)
of the Act, or (v) the Company and the Guarantor shall have initiated a
suspension period (other than as provided in Section 2(d) or 3(d)) (each such
event referred to in clauses (i) through (v), a "Registration Default"), then
additional interest with respect to the Transfer Restricted Notes ("Additional
Interest") will accrue with respect to the first 90-day period immediately
following the occurrence of such Registration Default in an amount equal to
0.25% per annum per $1,000 principal amount of such Notes and will increase by
an additional 0.25% per annum per $1,000 principal amount of such Notes for each
subsequent 90-day period until such Registration Default has been cured, up to
an aggregate maximum amount of Additional Interest of 0.75% per annum per $1,000
principal amount of Notes for all Registration Defaults. Following the cure of a
Registration Default, the accrual of Additional Interest with respect to such
Registration Default will cease and upon the cure of all Registration Defaults
the accrual of all Additional Interest will cease. Notwithstanding anything to
the contrary in this Section 4(a), the Company and the Guarantor shall not be
required to pay Additional Interest to a Holder of Restricted Transfer Notes if
such Holder failed to comply with its obligations to make the representations
set forth in the second sentence of Section 2(b) or provide the requested
information pursuant to Section 3(e).
(b) The Company shall notify the Trustee and paying agent
under the Indenture immediately upon the happening of each and every
Registration Default. The Company and the Guarantor shall pay the Additional
Interest due on the Transfer Restricted Notes by depositing with the paying
agent (which shall not be the Company or the Guarantor for these purposes) for
the Transfer Restricted Notes, in trust, for the benefit of the Holders thereof,
prior to 11:00 a.m. on the next interest payment date specified in the Indenture
(or such other indenture), sums sufficient to pay the Additional Interest then
due. The Additional Interest due shall be payable on each interest payment date
specified by the Indenture (or such other indenture) to the record holders
entitled to receive the interest payment to be made on such date. Each
obligation to pay Additional Interest shall be deemed to accrue from and include
the date of the applicable Registration Default to, but excluding, the relevant
interest payment date.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes a reasonable estimate of the damages
that will be suffered by Holders of Transfer Restricted Notes by reason of the
happening of any Registration Default and are intended to constitute the sole
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remedy for damages that will be suffered by the Holders of the Transfer
Restricted Notes by reason of any of the failures listed in Section 4(a).
(d) All of the Company's and the Guarantor's obligations set
forth in this Section 4 which are outstanding with respect to any Transfer
Restricted Note at the time such Note ceases to be a Transfer Restricted Note
shall survive until such time as all such obligations with respect to such Note
have been satisfied in full (notwithstanding termination of this Agreement).
5. Registration Procedures. In connection with any Exchange
Offer Registration Statement and, to the extent applicable, any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company and the Guarantor shall furnish to the Initial
Purchaser, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall reflect in each
such document, when so filed with the Commission, such comments as the Initial
Purchaser reasonably may propose.
(b) The Company and the Guarantor shall ensure that:
(i) any Registration Statement and any amendment thereto
and any Prospectus contained therein and any amendment or supplement
thereto complies in all material respects with the Act;
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit 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;
provided that no representation or agreement is made hereby with respect to
information with respect to the Initial Purchaser, any Underwriter or any Holder
required to be included in any Registration Statement or Prospectus pursuant to
the Act or provided by the Initial Purchaser, any Holder or any Underwriter
specifically for inclusion in any Registration Statement or Prospectus.
(c) (1) The Company and the Guarantor shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the Holders of
Transfer Restricted Notes covered thereby, and, if requested by the Initial
Purchaser or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when a Registration
Statement or any post-effective amendment thereto has become effective;
and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company and the Guarantor shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the Holders of
Transfer Restricted Notes covered thereby, and, in the case
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of an Exchange Offer Registration Statement, any Participating Broker-Dealer
that has provided in writing to the Company a telephone or facsimile number and
address for notices, and, if requested by the Initial Purchaser or any such
Holder or Participating Broker-Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company or the Guarantor of any
notification with respect to the suspension of the qualification of the
Transfer Restricted Notes included in any Registration Statement for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the Prospectus
so that, as of the date at such event, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Company and the Guarantor shall use their reasonable
best efforts to obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement at the earliest possible time.
(e) The Company and the Guarantor shall furnish to each Holder
of Transfer Restricted Notes included within the coverage of any Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those incorporated by reference).
(f) The Company and the Guarantor shall, during the Shelf
Registration Period, deliver to each Holder of Transfer Restricted Notes
included within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including any preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Company and the Guarantor
consent to the use of the Prospectus (including any preliminary prospectus) or
any amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Notes in connection with the offering and sale of the Transfer
Restricted Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Company and the Guarantor shall furnish to each
Participating Broker-Dealer that so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, any documents
incorporated by reference therein and, if the Participating Broker-Dealer so
requests in writing, all exhibits thereto (including those incorporated by
reference).
(h) The Company and the Guarantor shall, during the Exchange
Offer Registration Period and pursuant to the requirements of the Act for the
resale of the Exchange Notes during the period in which a prospectus is required
to be delivered under the Act (including any Commission no-action letters
relating to the Registered Exchange Offer), deliver to each Participating
Broker-Dealer, without charge, as many copies of the Prospectus (including any
preliminary Prospectus) included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Participating
10
Broker-Dealer may reasonably request; and the Company and the Guarantor consent
to the use of the Prospectus (including any preliminary prospectus) or any
amendment or supplement thereto by any such Participating Broker-Dealer in
connection with the offering and sale of the Exchange Notes, as provided in
Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other
offering of Transfer Restricted Notes pursuant to any Registration Statement,
the Company and the Guarantor shall use their reasonable best efforts to
register, qualify or cooperate with the Holders of Transfer Restricted Notes
included therein and their respective counsel in connection with the
registration or qualification of such Transfer Restricted Notes for offer and
sale under the securities or blue sky laws of such states as any such Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the Transfer
Restricted Notes covered by such Registration Statement; provided, however,
neither the Company nor the Guarantor will be required to qualify generally to
do business in any jurisdiction in which it is not then so qualified, to file
any general consent to service of process or to take any action which would
subject it to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(j) The Company and the Guarantor shall cooperate with the
Holders to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in denominations and registered in
such names as Holders may request prior to sales of Transfer Restricted Notes
pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by Section
2(d), 3(d) or paragraph (c)(2)(iii) of this Section 5, the Company and the
Guarantor shall promptly prepare and file a post-effective amendment to any
Registration Statement or an amendment or supplement to the related Prospectus
or any other required document so that, as thereafter delivered to purchasers of
the Transfer Restricted Notes included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) The Company and the Guarantor shall use their reasonable
best efforts to cause The Depository Trust Company ("PTC") on the first Business
Day following the effective date of any Registration Statement hereunder or as
soon as possible thereafter to remove (i) from any existing CUSIP number
assigned to the Transfer Restricted Notes or Exchange Notes, as the case may be,
any designation indicating that such notes are "restricted securities," which
efforts shall include delivery to DTC of a letter executed by the Company
substantially in the form of Annex E hereto and (ii) any other stop or
restriction on DTC's system with respect to the Transfer Restricted Notes or
Exchange Notes, as the case may be. In the event the Company and the Guarantor
are unable to cause DTC to take actions described in the immediately preceding
sentence, the Company and the Guarantor shall take such actions as the Initial
Purchaser may reasonably request to provide, as soon as practicable, a new CUSIP
(if not already obtained) number for the Transfer Restricted Notes or Exchange
Notes registered under such Registration Statement and to cause such CUSIP
number to be assigned to the Transfer Restricted Notes or Exchange Notes (or to
the maximum aggregate principal amount of the securities to which such number
may be assigned).
(m) The Company and the Guarantor shall use their reasonable
best efforts to comply with all applicable rules and regulations of the
Commission and shall make generally available to the security holders as soon as
practicable after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11 (a) of the Act and
Rule 158 promulgated thereunder.
11
(n) The Company and the Guarantor shall use their reasonable
best efforts to cause the Indenture to be qualified under the Trust Indenture
Act in a timely manner.
(o) The Company and the Guarantor may require each Holder of
Transfer Restricted Notes to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and the Guarantor such information regarding
the Holder and the distribution of such Transfer Restricted Notes as may, from
time to time, be reasonably required by the Act, and the obligations of the
Company and the Guarantor to any Holder hereunder shall be expressly conditioned
on the compliance of such Holder with such request.
(p) The Company and the Guarantor shall, if requested,
promptly incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement (i) such information as the Majority Holders
provide or, if the Transfer Restricted Notes are being sold in an underwritten
offering, as the Managing Underwriters and the Majority Holders, reasonably
agree should be included therein and, in either case, provided to the Company or
the Guarantor in writing for inclusion in the Shelf Registration Statement, or
Prospectus, and (ii) such information as a Holder may provide from time to time
to the Company or the Guarantor in writing for inclusion in a Prospectus or any
Shelf Registration Statement, in the case of clause (i) or (ii) above,
concerning such Holder and/or underwriter and the distribution of such Holder's
Transfer Restricted Notes and, in either case, shall make all required filings
of such Prospectus supplement or post-effective amendment as soon as practicable
after being notified in writing of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Company and the Guarantor shall enter into such agreements (including
underwriting agreements) and take all other customary and appropriate actions as
may be reasonably requested in order to expedite or facilitate the registration
or the disposition of any Transfer Restricted Notes, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than those
set forth in Section 8 (or such other provisions and procedures reasonably
acceptable to the Majority Holders and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to Section 8).
(r) In the case of any Shelf Registration Statement, the
Company and the Guarantor shall:
(i) make reasonably available for inspection by the
Holders of Transfer Restricted Notes to be registered thereunder, any
Managing Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such Managing Underwriter, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and the Guarantor and any of their
subsidiaries;
(ii) cause the Company's and the Guarantor's officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such Managing Underwriter, attorney,
accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by the
Company and the Guarantor as confidential at the time of delivery of
such information shall be kept confidential by the Holders or any such
Managing Underwriter, attorney, accountant or agent, unless (x)
disclosure thereof is made in connection with a court proceeding or
required by law; provided that each Holder and any such Managing
Underwriter, attorney, accountant or agent will, upon learning that
disclosure of such information is sought in a
12
court proceeding or required by law, give notice to the Company and the
Guarantor with enough time to allow the Company and the Guarantor to
undertake appropriate action to prevent disclosure at the Company's and
the Guarantor's sole expense, or (y) such information has previously
been made or becomes available to the public generally through the
Company, the Guarantor or through a third party without an accompanying
obligation of confidentiality or failure to safeguard such disclosure;
(iii) make such representations and warranties to the
Holders of Transfer Restricted Notes registered thereunder and the
Managing Underwriters, if any, in form, substance and scope as are
customarily made by the Company and the Guarantor to Managing
Underwriters and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantor and updates thereof (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the Managing
Underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and Managing
Underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company and
the Guarantor (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of the Transfer Restricted
Notes covered by such Shelf Registration Statement (provided such
Holder furnishes the accountants with such representations as the
accountants customarily require in similar situations) and the Managing
Underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
similar offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Guarantor.
The foregoing actions set forth in this Section 5(r) shall be
performed at the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto or as otherwise agreed among the Company, the
Guarantor, the Majority Holders and the Managing Underwriters.
6. Registration Expenses. The Company and the Guarantor shall
bear all reasonable fees and expenses (including the reasonable fees and
expenses, if any, of Shearman & Sterling, counsel for the Initial Purchaser,
incurred in connection with the Registered Exchange Offer) incurred in
connection with the performance of their obligations under Sections 2, 3, 4 and
5 hereof (other than brokers', dealers' and underwriters' discounts and
commissions and brokers', dealers' and underwriters' counsel fees) and, in
connection with any Shelf Registration Statement, shall reimburse the Holders
for the reasonable fees and disbursements of one firm or counsel designated by
the Majority Holders to act as counsel for the Holders in connection therewith.
7. Rules 144 and 144A. The Company and/or the Guarantor shall
use their reasonable best efforts to file the reports required to be filed by
them under the Act and the Exchange Act in a timely manner and, if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Transfer Restricted Notes, make publicly available the applicable
information necessary to
13
permit sales of their securities pursuant to Rules 144 and 144A (or any
successor rule adopted by the Commission). The Company and the Guarantor
covenant that they will take such further action as any Holder of Transfer
Restricted Notes may reasonably request, all to the extent required from time to
time to enable such Holder to sell Transfer Restricted Notes without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4) if
applicable). The Company will provide a copy of this Agreement to prospective
purchasers of Transfer Restricted Notes identified to the Company by the Initial
Purchaser upon request. Upon the request of any Holder of Transfer Restricted
Notes, the Company shall deliver to such Holder a written statement as to
whether it and the Guarantor have complied with such requirements.
8. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the
Company and the Guarantor, jointly and severally, agree to indemnify
and hold harmless each Holder of Transfer Restricted Notes covered
thereby, the directors, officers, employees and agents of each such
Holder and each person who controls any such Holder within the meaning
of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, in any
preliminary Prospectus or Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agree to reimburse each such indemnified party, for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Company and the Guarantor will not be
liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon (A) any such untrue statement
or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
relating to the Holder furnished to the Company and the Guarantor by or
on behalf of any such Holder specifically for inclusion therein, (B)
use of a Registration Statement or the related Prospectus during a
period when a stop order has been issued in respect of such
Registration Statement or any proceedings for that purpose have been
initiated or use of a Prospectus when use of such Prospectus has been
suspended pursuant to Section 2(d), 3(d) or 5(c)(2); provided, further,
in each case, that Holders received prior notice of such stop order,
initiation of proceedings or suspension; or (C) if the Holder is
required to but does not deliver a Prospectus or the then-current
Prospectus. This indemnity agreement will be in addition to any
liability that the Company and the Guarantor may otherwise have.
(ii) The Company and the Guarantor also agree to indemnify or
contribute to Losses, as provided in Section 8(d), of any Managing
Underwriters of Transfer Restricted Notes registered under a
Registration Statement, their officers and directors and each person
who controls such Managing Underwriters on substantially the same basis
as that of the indemnification of the selling Holders provided in this
Section 8(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in
Section 5(q) hereof.
(b) Each Holder of Transfer Restricted Notes covered by a
Registration Statement severally agrees to indemnify and hold harmless the
Company and the Guarantor and their respective directors, officers, employees
and agents and each person who controls either of the Company or the Guarantor
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing
14
indemnity from the Company and the Guarantor to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company and the Guarantor by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
or person may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, 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
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded,
based on the advice of outside counsel, that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall have authorized
the indemnified party to employ separate counsel at the expense of the
indemnifying party; provided further, that the indemnifying party shall not be
responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) representing all the indemnified
parties under paragraph (a) or paragraph (b) above. An indemnifying party will
not, 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.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses; provided that, the benefits received by the Company and
the Guarantor shall be deemed to be equal to the sum of the gross proceeds from
the original issuance of the Notes (before deducting expenses) and the benefits
received by any Managing Underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
15
Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Holder or such other indemnified person, as the case may be, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of 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 action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 8(d), the Holders of the Transfer Restricted Notes shall in no case be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Transfer Restricted Notes
pursuant to a Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission and in no case shall any
Managing Underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the Transfer Restricted Notes purchased by
such Managing Underwriter under the Registration Statement which resulted in
such Losses pursuant to the terms of this Agreement. The parties agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an indemnified party within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of such indemnified party shall have the same rights to
contribution as such indemnified party, and each person who controls the Company
or the Guarantor within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of the Company or the Guarantor shall
have the same rights to contribution as the Company and the Guarantor, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 8 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company, the Guarantor or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive the sale by a Holder
of Transfer Restricted Notes covered by a Registration Statement.
9. Underwritten Registrations.
If any of the Transfer Restricted Notes covered by any Shelf
Registration statement are to be sold in an underwritten offering, the Managing
Underwriter that will administer the offering will be selected by the Majority
Holders of such Transfer Restricted Notes included in such offering, subject to
the consent of the Company not to be unreasonably withheld; it being expressly
agreed that the Initial Purchaser is an acceptable Managing Underwriter to the
Company and such Holders shall be responsible for all underwriting commissions
and discounts in connection therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Notes on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements
16
and other documents reasonably required under the terms of such underwriting
arrangements.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantor
have not, as of the date hereof, entered into nor shall they, on or after the
date hereof, enter into any agreement that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Guarantors have
obtained the written consent of the Majority Holders. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of the Holders whose
securities are being sold pursuant to an Exchange Offer Registration Statement
or a Shelf Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders may be given by
Holders of at least a majority in aggregate principal amount of the applicable
notes being sold pursuant to such registration statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchaser, as follows:
Wachovia Securities, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0604
Attention: High Yield Origination
Fax:
Tel:
(ii) if to any other Holder, at the most current address
given by such Holder to the Company and the Guarantor in accordance
with the provisions of this Section 10(c), which address initially is,
with respect to each Holder, the address of such Holder maintained by
the registrar under the Indenture, with a copy in like manner to the
Initial Purchaser; and
(iii) if to the Company or the Guarantor, as follows:
Avondale Xxxxx, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Xx., Chief Financial Officer
Fax:(000) 000-0000
Tel:(000) 000-0000
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail, telex or telecopier.
The Company and the Guarantor by notice to the others may
designate additional or
17
different addresses for subsequent notices or communications.
(d) 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 the need for an express assignment or any consent by
the Company or the Guarantor thereto, subsequent Holders. The Company and the
Guarantor hereby agree to extend the benefits of this Agreement to any Holder
that acquires the applicable Notes from a Holder and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law and Consent to Jurisdiction. This agreement
shall be governed by and construed in accordance with the laws of the State of
New York. The Company and the Guarantor (x) submit to the nonexclusive
jurisdiction of the courts of the State of New York and of the United States
sitting in the Borough of Manhattan in respect of any action, claim or
proceeding ("Proceeding") arising out of or relating to this Agreement or the
transactions contemplated hereby, (y) irrevocably waive, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to
the laying of venue of any Proceeding in the Supreme Court of the State of New
York, County of New York, or the United States District Court for the Southern
District of New York, and any claim that any Proceeding in any such court has
been brought in an inconvenient forum, and (z) agree that any service of process
or other legal summons in connection with any Proceeding may be served on it by
mailing a copy thereof by registered mail, or a form of mail substantially
equivalent thereto, postage prepaid, addressed to the served party at its
address as provided for in Section 10(c). Nothing in this section shall affect
the right of the parties to serve process in any other manner permitted by law.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Transfer
Restricted Notes or Exchange Notes is required hereunder, Transfer Restricted
Notes or Exchange Notes held by the Company, the Guarantor or any of their
respective Affiliates (other than subsequent Holders of Transfer Restricted
Notes or Exchange Notes if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets forth the
agreement between and among the Company, the Guarantor and the Initial
Purchaser.
18
Very truly yours,
AVONDALE XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
---------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman
and Chief Financial Officer
AVONDALE INCORPORATED
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman
and Chief Financial Officer
The foregoing Agreement is hereby
acknowledged and accepted as of
the date first written above.
WACHOVIA SECURITIES, LLC
By: /s/ Xxxxx X. Xxxxxx, III
---------------------------
Name: Xxxxx X. Xxxxxx, III
Title: Vice President
19
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer during the Exchange Offer Registration
Period in connection with resales of Exchange Notes received in exchange for
Notes where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company and the
Guarantor have agreed that, during the Exchange Offer Registration Period, it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
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ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes
during the Exchange Offer Registration Period. See "Plan of Distribution."
X-x
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Notes during
the Exchange Offer Registration Period. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired as a result of market-making activities or other trading
activities. The Company and the Guarantor have agreed that, during the Exchange
Offer Registration Period, they will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
The Company and the Guarantor will not receive any proceeds
from any sale of Exchange Notes by broker-dealers. Exchange Notes received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit from any such resale
of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
During the Exchange Offer Registration Period, the Company and
the Guarantor will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company and the Guarantor have
agreed to pay all expenses incident to the Registered Exchange Offer (including
the expenses of one counsel for the holders of the Notes) other than dealers'
and brokers' discounts, commissions and counsel fees and will indemnify the
holders of the Notes (including any broker-dealers) against certain liabilities,
including liabilities under the Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
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ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
[ ] Name: __________________________________________
Address: __________________________________________
__________________________________________
The undersigned represents that it is not an Affiliate of the
Company or the Guarantor, that any Exchange Notes to be received by it will be
acquired in the ordinary course of business and that at the time of the
commencement of the Registered Exchange Offer it had no arrangement with any
person to participate in a distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Notes. If the undersigned is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-l
ANNEX E
FORM OF LETTER TO BE PROVIDED BY THE COMPANY TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 10 1/4% Senior Subordinated Notes due 2013 (the
"Notes") of Avondale Xxxxx, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-_______under the
Securities Act of 1933, as amended, with regard to all of the Notes referenced
above. Accordingly, there is no longer any restriction as to whom such Notes may
be sold and [any restrictions on the CUSIP designation are no longer appropriate
and may be removed] [the new CUSIP number for the Notes provided should be
used]. I understand that upon receipt of this letter, DTC will remove any stop
or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
Very truly yours,
AVONDALE XXXXX, INC.
By:________________________
Authorized Officer
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