EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF APRIL 29, 1998
by and among
GROVE INVESTORS LLC
GROVE INVESTORS CAPITAL, INC.
and
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
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This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of April 29, 1998 by and among Grove Investors LLC, a
Delaware limited liability company ("INVESTORS"), Grove Investors Capital,
Inc. a Delaware Corporation ("GROVE INVESTORS CAPITAL" and, together with
Investors, the "ISSUERS"), and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation (the "INITIAL PURCHASER"), each of whom has agreed to purchase
the Issuers' 14 1/2% Senior Debentures due 2010 (the "SENIOR DEBENTURES")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated April
23, 1998 (the "PURCHASE AGREEMENT"), by and among the Issuers and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Senior
Debentures, the Issuers have agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchaser set forth in the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the meaning
assigned to them in the Indenture, dated April 29, 1998, between the Issuers and
United States Trust Company of New York, as Trustee, relating to the Senior
Debentures and the New Senior Debentures (the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: Definitive Debentures, 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
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Senior Debentures to be issued in the Exchange Offer, (b)
the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the delivery by the
Issuers to the Registrar under the Indenture of New Senior Debentures in the
same aggregate principal amount as the aggregate principal amount of Senior
Debentures validly tendered by Holders thereof pursuant to the Exchange Offer.
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CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Issuers of a
principal amount of New Senior Debentures (which shall be registered pursuant
to the Exchange Offer Registration Statement) equal to the outstanding
principal amount of Senior Debentures that are validly tendered by such
Holders in connection with such exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser
proposes to sell the Senior Debentures (i) to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the Act and
(ii) in offshore transactions pursuant to Regulation S under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
NEW SENIOR DEBENTURES: The Issuers' 14 1/2% new Senior Debentures due
2010 to be issued pursuant to the Indenture: (i) in the Exchange Offer or
(ii) as contemplated by Section 4 hereof.
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.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Issuers
relating to (a) an offering of New Senior Debentures pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, in each case, (i) that 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.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
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SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939, as amended, (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Senior Discount Debenture, until
the earliest to occur of (a) the date on which such Senior Discount Debenture
is exchanged in the Exchange Offer for a New Senior Discount Debenture which
is entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date
on which such Senior Discount Debenture has been disposed of in accordance
with a Shelf Registration Statement (and the purchaser thereof has been
issued New Senior Debentures), or (c) the date on which such Senior Discount
Debenture is distributed to the public pursuant to Rule 144 under the Act or
is saleable pursuant to Rule 144(k) under the Act and each New Senior
Discount Debenture until the date on which such New Senior Discount Debenture
is disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 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)(i) below have
been complied with), the Issuers shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 60 days after the Closing
Date (such 60th day being the "FILING DEADLINE"), (ii) use their reasonable
best efforts to cause such Exchange Offer Registration Statement to become
effective at the earliest possible time, but in no event later than 180 days
after the Closing Date (such 180th day being the "EFFECTIVENESS DEADLINE"),
(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 it 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 New Senior Debentures 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 shall be on the appropriate form permitting (i)
registration of the New Senior Debentures to be offered in exchange for the
Senior Debentures that are Transfer Restricted Securities and (ii) resales of
New Senior Debentures by Broker-Dealers that tendered into the Exchange Offer
Senior Debentures that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than
Senior Debentures acquired directly from the Issuers or any of its
Affiliates) as contemplated by Section 3(c) below.
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(b) The Issuers shall use their reasonable best efforts to cause
the Exchange Offer Registration Statement to be effective continuously, and
shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to
Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no event shall such
period be less than 20 Business Days. The Issuers shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No
securities other than the New Senior Debentures shall be included in the
Exchange Offer Registration Statement. The Issuers shall use their
reasonable best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 business days thereafter
(such 30th day being the "CONSUMMATION DEADLINE").
(c) The Issuers shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any (i) Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer as a
result of market-making activities or other trading activities (other than
Senior Debentures acquired directly from the Issuers or any Affiliate of the
Issuers) may exchange such Transfer Restricted Securities pursuant to the
Exchange Offer; and (ii) 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 any New Senior Debentures received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by
delivery 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 by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but
such "Plan of Distribution" section shall not name any such Broker-Dealer or
disclose the amount of Transfer Restricted Securities held by any such
Broker-Dealer, except to the extent required by law or by the Commission as a
result of a change in the Commission's policy, rules or regulations after the
date of this Agreement. See the Shearman & Xxxxxxxx no-action letter
(available July 2, 1993).
To the extent necessary to ensure that the prospectus contained in the
Exchange Offer Registration Statement is available for sales of New Senior
Debentures by such Broker-Dealers, the Issuers agree to use their reasonable
best efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented, amended and current as required by and subject to
the provisions of Section 6(a) and (c) hereof and in conformity 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 Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto. The Issuers shall
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one
business day after such request, at any time during such period in order to
facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Exchange Offer is not permitted
by applicable law (after the Issuers have complied with the procedures set
forth in Section 6(a)(i) below) or (ii) if any
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Holder of Transfer Restricted Securities shall notify the Issuers within 20
Business Days following the Consummation Deadline 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 New Senior Debentures 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 Senior Debentures acquired directly from the
Issuers or any of its Affiliates, then the Issuers shall:
(x) cause to be filed, on or prior to 60 days after the earlier of (i) the
date on which the Issuers determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the
date on which the Issuers receives the notice specified in clause (a)(ii)
above, (such earlier date, the "FILING DEADLINE"), a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to
the Exchange Offer Registration Statement (the "SHELF REGISTRATION
STATEMENT")), relating to all Transfer Restricted Securities, and
(y) shall use their reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 120 days after the
Filing Deadline for the Shelf Registration Statement (such 120th day the
"EFFECTIVENESS DEADLINE").
If, after the Issuers have filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Issuers
are required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law
(i.e., clause (a)(i) above), then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause
(x) above; PROVIDED that, in such event, the Issuers shall remain obligated
to meet the Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Issuers shall use their reasonable best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current in all material respects as required by and
subject to the provisions of Sections 6(b) and (c) hereof and in conformity
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the Transfer Restricted Securities, until the expiration of the
period referred to in Rule 144(k) under the Act after the Closing Date
expires, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto.
(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 Issuers in writing, within 20 days after receipt of a
request therefor, the information specified in Item 507 or 508 of Regulation
S-K, as applicable, of the Act and any other applicable rules, regulations or
policies of the Commission for use in
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connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities
shall be entitled to liquidated damages pursuant to Section 5 hereof unless
and until such Holder shall have provided all such information. Each selling
Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the
Issuers by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation
Deadline or (iv) any Registration Statement required by this Agreement is
filed and declared effective but (A) shall thereafter cease to be effective
prior to completion of the Exchange Offer or the sale of all the Transfer
Restricted Securities registered pursuant to the Shelf Registration
Statement, as the case may be, (except as permitted in paragraph (b) of this
Section 5) or (B) such Registration Statement ceases to be usable in
connection with resales of Transfer Restricted Securities during the periods
specified in this Agreement (except as permitted in paragraph (b) of this
Section 5) because either (1) any event occurs as a result of which the
related prospectus forming part of such Registration Statement would include
any 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 were made, not misleading or (2) it shall be necessary to
amend such Registration Statement, or supplement the related prospectus, to
comply with the Act or the Exchange Act or the respective rules thereunder,
and, in each case, such Registration Statement is not succeeded by a
post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective as soon as practicable and in
no event to exceed 5 business days (each such event referred to in clauses
(i) through (iv), a "REGISTRATION DEFAULT"), then the Issuers hereby jointly
and severally agree to pay to each Holder of Transfer Restricted Securities
affected thereby liquidated damages in an amount equal to $.05 per week per
$1,000 in principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration Default
continues for the first 90-day period immediately following the occurrence of
such Registration Default. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted Securities 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 in principal amount of
Transfer Restricted Securities; PROVIDED that the Issuers shall in no event
be required to pay liquidated damages for more than one Registration Default
at any given time. Notwithstanding anything to the contrary set forth herein,
(1) upon filing of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (i) above, (2)
upon the effectiveness of the Exchange Offer Registration Statement (and/or,
if applicable, the Shelf Registration Statement), in the case of (ii) above,
(3) upon Consummation of the Exchange Offer, in the case of (iii) above, or
(4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or made usable in the case of (iv)
above, the liquidated
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damages payable with respect to the Transfer Restricted Securities as a
result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture,
on each Interest Payment Date, as more fully set forth in the Indenture and
the Debentures. Notwithstanding the fact that any securities for which
liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Issuers to pay liquidated damages with respect to
securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Issuers shall (x) comply with all applicable provisions
of Section 6(c) below, (y) use their best efforts to effect such exchange and
to permit the resale of New Senior Debentures by Broker-Dealers that tendered
in the Exchange Offer Senior Debentures that such Broker-Dealer acquired for
its own account as a result of its market making activities or other trading
activities (other than Senior Debentures acquired directly from the Issuers
or any of its Affiliates) being sold in accordance with the intended method
or methods of distribution thereof, and (z) comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the Issuers
raises a substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Issuers hereby agree to seek a
no-action letter or other favorable decision from the Commission
allowing the Issuers to Consummate an Exchange Offer for such Transfer
Restricted Securities. The Issuers hereby agree to pursue the issuance
of such a decision to the Commission staff level. In connection with
the foregoing, the Issuers hereby agree to take all such other actions
as may be requested by the Commission or otherwise 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 Issuers setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of the Issuers, prior to the Consummation of the Exchange Offer,
a written representation to the Issuers (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 Issuers,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a
distribution of the New Senior Debentures to be issued in the Exchange
Offer and (C) it is acquiring the New Senior Debentures in its ordinary
course of business and (D) if such
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Holder is a Broker Dealer, that it will receive New Senior Debentures
for its own account in exchange for Senior Debentures that were acquired
as a result of market-making activities or other trading activities and
that it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such New Senior Debentures.
As a condition to its participation in the Exchange Offer each Holder
using the Exchange Offer to participate in a distribution of the New
Senior Debentures shall acknowledge and agree that, if the resales are
of New Senior Debentures obtained by such Holder in exchange for Senior
Debentures acquired directly from the Issuers or an Affiliate thereof,
it (1) could not, under Commission policy as in effect on the date of
this Agreement, rely on the position of the Commission enunciated in
XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991) and EXXON CAPITAL
HOLDINGS CORPORATION (available May 13, 1988), as interpreted in the
Commission's letter to SHEARMAN & STERLING dated July 2, 1993, and
similar no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with
the registration and prospectus 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 the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers shall provide a supplemental letter to the
Commission (A) stating that the Issuers are registering the Exchange
Offer in reliance on the position of the Commission enunciated in EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988), XXXXXX XXXXXXX
AND CO., INC. (available June 5, 1991) as interpreted in the
Commission's letter to XXXXXXXX & STERLING dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that the Issuers have not entered into
any arrangement or understanding with any Person to distribute the New
Senior Debentures to be received in the Exchange Offer and that, to the
best of the Issuers' information and belief, each Holder participating
in the Exchange Offer is acquiring the New Senior Debentures in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the New Senior
Debentures received in the Exchange Offer 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, if applicable.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Issuers shall:
(i) comply with all the provisions of Section 6(c) below and
use their best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Issuers pursuant to Section 4(b) hereof),
and pursuant thereto the Issuers 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
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method or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder of Senior Debentures
covered by any Shelf Registration Statement contemplated by this Agreement, New
Senior Debentures having an aggregate principal amount equal to the aggregate
principal amount of Senior Debentures sold pursuant to the Shelf Registration
Statement and surrendered to the Issuers for cancellation; the Issuers shall
register New Senior Debentures on the Shelf Registration Statement for this
purpose and issue the New Senior Debentures to the purchaser(s) of securities
subject to the Shelf Registration Statement in the names as such purchaser(s)
shall designate.
(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, the Issuers shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Issuers shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use their respective reasonable best efforts to cause such
amendment to be declared effective as soon as practicable thereafter.
Notwithstanding anything to the contrary set forth in this Agreement,
the Issuers' obligations to use their best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
shall be suspended in the event continued effectiveness of the Shelf
Registration Statement would, in the opinion of counsel to the Issuers,
require the Issuers to disclose a material financing, acquisition or
other corporate transaction, and the Management Committee of Investors,
shall have determined in good faith that such disclosure is not in the
best interests of the Issuers, but in no event will any such suspension,
individually or in the aggregate, exceed thirty (30) days within any
twelve month period during which the Shelf Registration Statement is
otherwise required to be effective.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, or such shorter
period as will terminate upon the earlier of the following (A) when all
Transfer Restricted Securities covered by such Registration Statement
have been sold and (B) when, in the written opinion of counsel to the
Issuers, all outstanding Transfer Restricted Securities held by persons
that are not Affiliates of the Issuers may be resold without
registration under the Act pursuant to Rule 144(k) under the Act or any
successor provision thereto; as the case may be; cause the Prospectus to
be supplemented by any
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required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act, and to comply in all material
respects 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 each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the 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, (D) of the
existence of any fact or the happening of any event 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, 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 any time the Commission shall issue
any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Issuers shall use their best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchaser 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 were made,
not misleading;
(v) furnish to each selling Holder in connection with such
exchange or sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and
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comment of such Holders in connection with such sale, if any, for a
period of at least three Business Days, and the Issuers 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 Holders
shall reasonably object within three Business Days after the receipt
thereof, except for any Registration Statement or amendment thereto or
prospectus or supplement thereto (a copy of which has been previously
furnished to the Initial Purchaser and their counsel (and, in the case
of a Shelf Registration Statement, the Holders and their counsel)) which
counsel to the Issuers has advised the Issuers in writing is required to
be filed in order to comply with applicable law. A Holder shall be
deemed to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
not misleading or fails to comply with the applicable requirements of
the Act;
(vi) promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each Holder in connection
with such exchange or sale, if any, make the Issuers' 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 Holders may reasonably request;
(vii) in connection with a sale under a Shelf Registration
Statement, make available, at reasonable times, for inspection by each
selling Holder and any attorney or accountant retained by such Holders,
following written request therefor, all pertinent financial and
corporate documents and other records customarily inspected by
underwriters as reasonably necessary to conduct a reasonable
investigation within the meaning of Section 11 of the Act, subject to
execution of customary confidentiality agreements of the Issuers and
cause the Issuers' officers, directors and employees to supply such
information reasonably requested in writing by any such Holder, 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;
(viii) if requested by any selling Holders in connection with
such exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities and (in the case of a Shelf Registration Statement to the
extent necessary to comply with law or interpretation of the Commission,
names of Holders who propose to sell as selling securityholders), and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Issuers are
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
11
(ix) furnish to each selling Holder in connection with such
exchange or sale, without charge, at least one conformed copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, excluding all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
and the Issuers hereby consent to the use (in accordance with law) of
the Prospectus and any amendment or supplement thereto by each selling
Holder in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(xi) in connection with a sale under a Shelf Registration
Statement, upon the request of any Holder, enter into such customary
agreements (including underwriting agreements) 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 applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by such Holders in connection with any sale or
resale pursuant to any applicable Registration Statement. In such
connection, the Issuers shall:
(A) upon request of any selling Holder,
furnish (or in the case of paragraphs (2) and (3), use
their best efforts to cause to be furnished) to such
Holder, upon Consummation of the Exchange Offer or upon
the effectiveness of the Shelf Registration Statement, as
the case may be:
(1) a certificate, dated
such date, signed on behalf of the
Issuers by (x) the President or any
Vice President and (y) a principal
financial or accounting officer of
the Issuers, confirming, as of the
date thereof, the matters set forth
in Sections 9(a) and 9(b) of the
Purchase Agreement and such other
similar matters as such Holders may
reasonably request;
(2) an opinion, dated the
date of effectiveness of the Shelf
Registration Statement of counsel for
the Issuers covering matters similar
to those set forth in paragraph (e)
of Section 9 of the Purchase
Agreement, and in any event including
a statement to the effect that such
counsel has participated in
conferences with officers and other
representatives of the Issuers and
representatives of the independent
public accountants for the Issuers
and have considered the matters
required to be stated therein and the
statements contained therein,
although such counsel has not
independently verified the accuracy,
completeness or fairness of such
statements; and a statement of such
counsel that, on the basis of the
foregoing (relying as to materiality
to the extent such counsel deems
appropriate upon the statements of
officers and other representatives of
the Issuers (and without independent
check or
12
verification)), no facts came to such
counsel's attention that caused such
counsel to believe that the
applicable Registration Statement, at
the time such Registration Statement
or any post-effective amendment
thereto became effective, contained
an untrue statement of a material
fact or omitted to state a material
fact required to be stated therein or
necessary to make the statements
therein not misleading, or that the
Prospectus contained in such
Registration Statement as of its date
and, in the case of the opinion dated
the date of Consummation of the
Exchange Offer, as of the date of
Consummation, contained an untrue
statement of a material fact or
omitted to state a material fact
necessary in order to make the
statements therein, in the light of
the circumstances under which they
were made, not misleading. Without
limiting the foregoing, such counsel
may state further that such counsel
assumes no responsibility for, and
has not independently verified, the
accuracy, completeness or fairness of
the financial statements, notes and
schedules and other financial data
included in any Registration
Statement contemplated by this
Agreement or the related Prospectus;
and
(3) a customary comfort
letter, dated as of the date of
effectiveness of the Shelf
Registration Statement, as the case
may be, from the Issuers' independent
accountants, in the customary form
and covering matters of the type
customarily covered in comfort
letters to underwriters in connection
with underwritten offerings, and
(B) deliver such other documents and
certificates as may be reasonably requested by the
selling Holders to evidence compliance with the matters
covered in clause (A) above and with any customary
conditions contained in the any agreement entered into by
the Issuers pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their 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 may reasonably 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 the Issuers shall not be required to register or qualify as a
foreign corporation where they are not now so qualified or to take any
action that would subject them 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 they are not now so
subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends, if such securities are required to be represented by
certificates, and to register such Transfer Restricted Securities in
such
13
denominations and such names as the selling Holders may request at
least two Business Days prior to such sale of Transfer Restricted
Securities;
(xiv) use their best 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
to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for the 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 a printed certificate for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) otherwise use their best efforts to comply in all
material respects with all applicable rules and regulations of the
Commission to the extent and so long as they are applicable to the
Exchange Offer or the Shelf Registration Statement , and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) 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);
(xvii) use their reasonable best efforts to cause the Indenture
to be qualified under the TIA not later than the effective date of the
first Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the Holders to
effect such changes, if any, 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 best efforts to cause the Trustee to
execute all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner; and
(d) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of
a Transfer Restricted Security that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) or any notice from the Issuers of the existence of
any fact of the kind described in Section 6(c)(iii)(D) hereof (in each case,
a "SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration
Statement until (i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such
Holder is advised in writing by the Issuers 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 (in each case,
the "RECOMMENCEMENT DATE"). Each Holder receiving a Suspension Notice hereby
agrees that it will either (i) destroy any Prospectuses, other than permanent
file copies, then in such Holder's possession which have been replaced by the
Issuers with more recently dated Prospectuses or (ii) deliver to the Issuers
(at the Issuers' expense) all copies, other
14
than permanent file copies, then in such Xxxxxx's possession of the
Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the Suspension 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 a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' performance of or
compliance with this Agreement will be borne by the Issuers, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing
certificates for the New Senior Debentures 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 Issuers (v) all fees and
disbursements of independent certified public accountants of the Issuers
(including the expenses of any special audit and comfort letters required by
or incident to such performance).
The Issuers will, in any event, bear their 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 Issuers.
(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 Issuers will reimburse
the Holders of Transfer Restricted Securities who are tendering Senior
Debentures into New Senior Debentures in the Exchange Offer and/or selling or
reselling Senior Debentures or New Senior Debentures pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxx & Xxxxxxx,
unless another firm shall be chosen to replace Xxxxxx & Xxxxxxx by the
Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) Each of the Issuers agrees, jointly and severally, to indemnify
and hold harmless each Holder, its directors, officers and each Person, if
any, who controls such Holder (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act), from and against any and all losses, claims,
damages, liabilities, judgments, (including without limitation, any
reasonable fees and expenses of counsel incurred in connection with
investigating or defending any matter, including any action that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, preliminary prospectus or Prospectus (as
amended or supplemented if the Issuers shall have furnished an amendment or
supplement) provided by the Issuers to any Holder or any
15
prospective purchaser of New Senior Debentures or registered Senior
Debentures, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon
information relating to any of the Holders furnished in writing to the
Issuers by any of the Holders; PROVIDED, HOWEVER, that the foregoing
indemnification with respect to any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary prospectus or
Prospectus, shall not inure to the benefit of any Holder from whom the person
asserting such loss, claim, damage, liability or expense purchased any of the
New Senior Debentures or registered Senior Debentures if a copy of the
Prospectus (or any amendment or supplement thereto) was not sent or given on
behalf of such Holder to such person at or prior to the written confirmation
of the sale of such New Senior Debentures or registered Senior Debentures to
such person and if the Prospectus (or the Prospectus, as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or expense.
(b) Each Holder of Transfer Restricted agrees, severally and not
jointly, to indemnify and hold harmless the Issuers, and their respective
directors and officers, and each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Issuers to the same extent as the foregoing indemnity from the Issuers set
forth in section (a) above, but only with reference to information relating
to such Holder furnished in writing to the Issuers by such Holder expressly
for use in any Registration Statement. In no event shall any Holder, its
directors, officers or any Person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid
by such Holder for such Transfer Restricted Securities and (ii) the amount of
any damages that such Holder, its directors, officers or any Person who
controls such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PERSON")
in writing and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all reasonable fees and expenses of such
counsel, as incurred. Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include
both the indemnified party and the indemnifying party, and the indemnified
party shall have been advised by its counsel that there may be one or more
legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf
of the indemnified party). Notwithstanding anything to the contrary in this
Section 8, the indemnifying party shall not, in
16
connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such reasonable fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Holders of a majority in aggregate principal amount of the Senior Debentures,
in the case of the parties indemnified pursuant to Section 8(a), and by the
Issuers, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold hamless the indemnified party
from and against any and all losses, claims, damages, liabilities and
judgments by reason of any settlement of any action (i) effected with the
indemnifying party's written consent or (ii) effected without its written
consent if the settlement is entered into more than thirty business days
after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the reasonable fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action, claim, litigation or proceeding 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 the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein (other than by
reason of exceptions provided under this Section 8, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or judgments (i) in such proportion as
is appropriate to reflect the relative benefits received by the Issuers, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Issuers, on the one hand, and of the
Holder, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative fault of
the Issuers, on the one hand, and of the Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuers, on the
one hand, or by the Holder, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as
a result of the losses, claims, damages, liabilities and judgments referred
to above shall be deemed to include, subject to the limitations set forth in
Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
17
The Issuers and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(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 in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, no Holder, its directors, its officers or any Person, if any, who
controls such Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder
with respect to the sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) 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. 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. The Holders' obligations to contribute
pursuant to this Section 8(c) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each Holder
hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Issuers agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which
Investors (i) is not subject to Section 13 or 15(d) of the Exchange Act, to
make available, upon request of any Holder, to such 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, and (ii) is subject to Section
13 or 15 (d) of the Exchange Act, to make all filings required thereby in a
timely manner in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144.
18
SECTION 10. MISCELLANEOUS
(a) REMEDIES. The Issuers acknowledge and agree that any failure by
the Issuers to comply with their respective obligations under Sections 3 and
4 hereof may result in material irreparable injury to the Initial Purchaser
or the Holders for which there is no adequate remedy at law, that it will not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Issuers'
obligations under Sections 3 and 4 hereof. The Issuers further agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Issuers will not, on or after
the date of this Agreement, enter into any agreement with respect to their
securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The
Issuers have not previously entered into any agreement granting any
registration rights with respect to its securities to any Person. 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 Issuers'
securities under any agreement in effect on the date hereof.
(c) 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 10(c)(i), the Issuers have obtained the
written consent of Holders of all outstanding Transfer Restricted Securities
and (ii) in the case of all other provisions hereof, the Issuers have
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities (excluding Transfer
Restricted Securities held by the Issuers or its Affiliates).
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
Transfer Restricted Securities are being tendered pursuant to the Exchange
Offer, and that does not affect directly or indirectly the rights of other
Holders whose Transfer Restricted 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.
(d) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers, on the
one hand, and the Initial Purchaser, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(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
19
(ii) if to the Issuers:
Grove Investors LLC
000 Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
With a copy to:
Xxxx, Xxxxx, Xxxxxxx, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) No Holder may participate in an underwritten Registration
hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx'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.
(g) 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. Such investment bankers and managers are referred to
herein as the "underwriters."
(h) 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; PROVIDED, that nothing herein shall be deemed
to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Transfer Restricted Securities in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all
of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions
20
of this Agreement, including the restrictions on resale set forth in this
Agreement and, if applicable, the Purchase Agreement, and such Person shall
be entitled to receive the benefits hereof.
(i) 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.
(j) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(l) 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.
(m) ENTIRE 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 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.
GROVE INVESTORS LLC
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title:
GROVE INVESTORS CAPITAL, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title:
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The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written by Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation on behalf of the
Initial Purchaser.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name:
Title:
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EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx (Compliance Department)
Fax: (000) 000-0000
From: Grove Investors LLC/Grove Capital, Inc.
14 1/2% Senior Debentures due 2010
Date: ___,199_
For your information only (NO ACTION REQUIRED):
Today, ______, 199_, we filed [an Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within __
business days of the date hereof.
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