EXHIBIT 4.4
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Registration Rights Agreement
Dated as of March 24, 1997
among
Xxxx-Xxxxxx Security Corporation
and
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
BT Securities Corporation,
Credit Suisse First Boston Corporation and
CIBC Wood Gundy Securities Corp.
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into on March 24, 1997, between XXXX-XXXXXX SECURITY CORPORATION, a
corporation organized under the laws of the State of Delaware (the "Company")
and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED ("Xxxxxxx Xxxxx"), BT
Securities Corporation, Credit Suisse First Boston Corporation, CIBC Wood Gundy
Securities Corp. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
March 19, 1997 between the Company, and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of US$125,000,000 principal amount of the Company's
9 5/8% Senior Subordinated Notes due 2007 (the "Initial Notes"). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble of this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that any such
depositary must have an address in the Borough of Manhattan, in the City
of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Exchange Notes" shall mean 9 5/8% Senior Subordinated Notes due
2007 issued by the Company under the Indenture containing terms
identical to the Initial Notes (except that (i) interest thereon shall
accrue from the last interest payment date on which interest was paid on
the Initial Notes or, if no such interest has been paid, from the
Original Issue Date, (ii) the transfer restrictions thereon shall be
eliminated and (iii) certain provisions relating to an increase in the
stated rate of interest thereon shall be eliminated), to be offered to
Holders of Initial Notes in exchange for Initial Notes pursuant to the
Exchange Offer.
"GAAP" shall have the meaning set forth in the Indenture.
"Holders" shall mean the Initial Purchasers, for so long as they
own any Registrable Notes, and each of their successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Notes under the Indenture.
"Indenture" shall mean the Indenture relating to the Initial Notes
and Exchange Notes dated as of March 24, 1997 between the Company and
The Bank of New York, as Trustee, as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Notes" shall have the meaning set forth in the preamble
of this Agreement.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided
that whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable Notes
held by the Company shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage
or amount.
"Xxxxxxx Xxxxx" shall have the meaning set forth in the preamble
of this Agreement.
"Original Issue Date" shall mean the date on which the Initial
Notes are issued under the Indenture.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Notes covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Notes" shall mean the Initial Notes; provided,
however, that the Initial Notes shall cease to be Registrable Notes when
(i) a Registration Statement with respect to such Initial Notes shall
have been declared effective under the 1933 Act and such Initial Notes
shall have been disposed of pursuant to such Registration Statement,
(ii) such Initial Notes shall have been sold to the public pursuant to
Rule 144(k) (or any similar provision then in force, but not Rule 144A)
under the 1933 Act, (iii) such Initial Notes shall have ceased to be
outstanding or (iv) such Initial Notes have been exchanged for Exchange
Notes upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification, if any, of any of the Exchange Notes or Registrable
Notes), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements, certificates
representing the Registrable Notes or Exchange Notes and other documents
relating to the performance of and compliance with this Agreement, (iv)
all rating agency fees, (v) all fees and expenses incurred in connection
with the listing, if any, of any of the Registrable Notes or Exchange
Notes on any securities exchange or exchanges, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel
for the Company and of the independent public accountants of the
Company, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance,
(viii) the fees and expenses of a "qualified independent underwriter" as
defined by Conduct Rule 2720 of the NASD (if required by the NASD rules)
in connection with the offering of the Registrable Notes or Exchange
Notes, (ix) the fees and expenses of the Trustee and any escrow agent or
custodian, and (x) any fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of securities and
the reasonable fees and expenses of any special experts retained by the
Company in connection with any Registration Statement, but excluding
fees of counsel to the underwriters or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Exchange Notes or Registrable Notes
pursuant to the provisions of this Agreement, and all amendments and
supplements to any 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.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant
to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Notes on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and 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.
"Trustee" shall mean the trustee with respect to the Initial Notes
and Exchange Notes under the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company at its cost,
shall (A) file within 45 days after the Original Issue Date with the SEC an
Exchange Offer Registration Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Notes for Exchange Notes, (B) use
its best efforts to cause such Exchange Offer Registration Statement to be
declared effective by the SEC within 105 days after the Original Issue Date,
(C) use its best efforts to cause such Exchange Offer Registration Statement
to remain effective until the closing of the Exchange Offer and (D) to
consummate the Exchange Offer within 135 days after the Original Issue Date.
The Exchange Notes will be issued under the Indenture. Upon the effectiveness
of the Exchange Offer Registration Statement, the Company shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder (other than Participating Broker-Dealers (as defined in
Section 3(f)) eligible and electing to exchange Registrable Notes for Exchange
Notes (assuming that such Holder is not an affiliate of the Company within the
meaning of Rule 405 under the 1933 Act, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes) to trade such Exchange Notes from
and after their receipt without any limitations or restrictions under the 1933
Act.
In connection with the Exchange Offer, the Company shall:
(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 Exchange Offer open for not less than 20 days after
the date notice thereof is mailed to the Holders (or longer if required
by applicable law);
(iii) use the services of the Depositary for the Exchange Offer
with respect to Initial Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending
to the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Notes delivered for exchange, and a
statement that such Holder is withdrawing his election to have such
Registrable Notes exchanged; and
(v) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange Registrable Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes to each Holder of Registrable Notes equal in amount to
the Registrable Notes of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last date on
which interest was paid on the Registrable Notes surrendered in exchange
therefor or, if no interest has been paid on the Registrable Notes, from the
Original Issue Date. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer, or the making of any exchange
by a Holder, does not violate applicable law or any applicable interpretation
of the Staff of the SEC. Each Holder of Registrable Notes (other than
Participating Broker-Dealers) who wishes to exchange such Registrable Notes
for Exchange Notes in the Exchange Offer will be required to represent that
(i) it is not an affiliate of the Company, (ii) any Exchange Notes to be
received by it were acquired in the ordinary course of business and (iii) at
the time of the commencement of the Exchange Offer it has no arrangement with
any person to participate in the distribution (within the meaning of the 0000
Xxx) of the Exchange Notes. The Company shall inform the Initial Purchasers
of the names and addresses of the Holders to whom the Exchange Offer is made,
and the Initial Purchasers shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the Staff of the SEC, the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof,
or (ii) if for any other reason the Exchange Offer is not consummated within
135 days following the Original Issue Date, or (iii) if any Holder (other than
the Initial Purchasers) is not eligible to participate in the Exchange Offer
or (iv) upon the request of any Initial Purchaser (with respect to any
Registrable Notes which it acquired directly from the Company) following the
consummation of the Exchange Offer if such Initial Purchaser shall hold
Registrable Notes which it acquired directly from the Company and if such
Initial Purchaser is not permitted, in the opinion of counsel to such Initial
Purchaser, pursuant to applicable law or applicable interpretation of the
Staff of the SEC, to participate in the Exchange Offer, the Company shall, at
its cost,
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the Registrable
Notes by the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Notes
and set forth in such Shelf Registration Statement, and use its best
efforts to cause such Shelf Registration Statement to be declared
effective by the SEC within 135 days after the Original Issue Date. In
the event that the Company is required to file a Shelf Registration
Statement upon the request of any Holder (other than an Initial
Purchaser) not eligible to participate in the Exchange Offer pursuant to
clause (iii) above or upon the request of any Initial Purchaser pursuant
to clause (iv) above, the Company shall file and have declared effective
by the SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Notes and a Shelf
Registration Statement (which may be a combined Registration Statement
with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Notes held by such Holder or such Initial
Purchaser after completion of the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the date the Shelf Registration Statement is declared effective by
the SEC (or one year from the date the Shelf Registration Statement is
declared effective if such Shelf Registration Statement is filed upon the
request of any Initial Purchaser pursuant to clause (iv) above) or such
shorter period which will terminate when all of the Registrable Notes
covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement; and
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (1) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (2) any Shelf 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 (3) any Prospectus forming part of
any Shelf Registration Statement, and any supplement to such Prospectus
(as amended or supplemented from time to time), does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in light of the circumstances
under which they were made, not misleading.
The Company further agrees, if necessary, to supplement or amend
the Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use all reasonable efforts to cause any
such amendment to become effective and such Shelf Registration to become
usable as soon as thereafter practicable and to furnish to the Holders of
Registrable Notes copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall be liable for and pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) or 2(b) and (x) in the case of any Shelf Registration Statement, will
reimburse the Holders and the Initial Purchasers for the reasonable fees and
disbursements of one firm or counsel designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable Notes in
connection therewith, and (y) in the case of an Exchange Offer Registration
Statement, will reimburse the Initial Purchasers, as applicable, for the
reasonable fees and disbursements of one firm or counsel in connection
therewith, provided that the aggregate amount of fees and disbursements of
counsel reimbursable by the Company under (x) and (y) above shall not exceed
$15,000. Each Holder shall pay all expenses of its counsel other than as set
forth in the preceding sentence, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Notes pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company will be
deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if it
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable Notes
covered thereby not being able to exchange or offer and sell such Registrable
Notes during that period unless (A) such action is required by applicable law
or (B) such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as the
Company promptly comply with the requirements of Section 3(k) hereof, if
applicable.
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Notes pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Notes pursuant
to such Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that (i) the
Exchange Offer Registration Statement is not filed with the SEC on or prior to
the 45th calendar day following the Original Issue Date, (ii) the Exchange
Offer Registration Statement is not declared effective on or prior to the
105th calendar day following the Original Issue Date, (iii) the Exchange Offer
is not consummated or a Shelf Registration Statement with respect to the
Registrable Notes is not declared effective on or prior to the 135th calendar
day following the Original Issue Date, or (iv) the Exchange Offer Registration
Statement is declared effective but thereafter ceases to be effective or
usable (each such event referred to in clauses (i)-(iv) above, a "Registration
Default"), the per annum interest rate borne by the Initial Notes shall be
increased by one-quarter of one percent (0.25%) with respect to the first
90-day period following such Registration Default, payable in cash on each
interest payment date, such interest rate to increase by an additional
one-quarter of one percent (0.25%) for each subsequent 90-day period until
such Registration Default has been cured, up to a maximum increase of one
percent (1.0%) per annum. Upon (w) the filing of the Exchange Offer
Registration Statement after the 45-day period described in clause (i) above,
(x) the effectiveness of the Exchange Offer Registration Statement after the
105-day period described in clause (ii) above, (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement, as the
case may be, after the 135-day period described in clause (iii) above or (z)
the cure of any Registration Default described in clause (iv) above, the
interest rate borne by the Initial Notes from the date of such filing,
effectiveness or consummation, as the case may be, will be reduced to the
original interest rate; provided, however, that if, after any such reduction
in interest rate, a different event specified in clause (i), (ii), (iii) or
(iv) above occurs, the interest rate may again be increased pursuant to the
foregoing provisions.
(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by the Company to comply with its obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers 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 Purchasers
or any Holder may obtain such relief as may be required to specifically
enforce the Company's obligations under Sections 2(a) and 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement,
within the time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company,
(ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Notes by the selling Holders thereof and (iii)
shall comply as to form in all material respects with the requirements
of the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith, and use
its best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by each Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Notes, at least five days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Notes is being
filed and advising such Holders that the distribution of Registrable
Notes will be made in accordance with the method elected by the Majority
Holders; and (ii) furnish to each Holder of Registrable Notes, to
counsel for the Initial Purchasers, and/or the Holders and to each
underwriter of an underwritten offering of Registrable Notes, if any,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request,
including financial statements and schedules and, if the Holder so
requests, all exhibits (including those incorporated by reference) in
order to facilitate the public sale or other disposition of the
Registrable Notes; and (iii) subject to the last paragraph of this
Section 3, hereby consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Registrable Notes
in connection with the offering and sale of the Registrable Notes
covered by the Prospectus or any amendment or supplement thereto;
(d) use its best efforts to register or qualify the Registrable
Notes under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Notes covered by a
Registration Statement and each underwriter of an underwritten offering
of Registrable Notes, if any, shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with the Holders in connection with any filings required to be
made with the NASD, keep each such registration or qualification
effective during the period such Registration Statement is required to
be effective and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Notes owned
by such Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes and counsel for the Initial Purchasers promptly and,
if requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to such offering cease to be
true and correct in all material respects, (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, (vi)
of the happening of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any
changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading and (vii) of any determination by
the Company that a post-effective amendment to a Registration Statement
would be appropriate;
(f) (A) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution"
section covering the use of the Prospectus included in the
Exchange Offer Registration Statement by broker-dealers who
have exchanged their Registrable Notes for Exchange Notes for
the resale of such Exchange Notes, (ii) furnish to each broker-
dealer who desires to participate in the Exchange Offer,
without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii)
include in the Exchange Offer Registration Statement a
statement that any broker-dealer who holds Registrable Notes
acquired for its own account as a result of market-making
activities or other trading activities (a "Participating
Broker-Dealer"), and who receives Exchange Notes for
Registrable Notes pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Notes, (iv) subject to the last paragraph of this
Section 3, consent to the use of the Prospectus forming part of
the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any broker-dealer in connection with the
sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto, and (v)
include in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision:
"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, the undersigned represents
that it will receive Exchange Notes for its own account in
exchange for Registrable Notes and that the Registrable
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 meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Notes pursuant
to the Exchange Offer; 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 1933 Act";
and (y) a statement to the effect that by making the
acknowledgment described in subclause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Notes,
the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the 1933 Act;
(B) to the extent any Participating Broker-Dealer notifies
the Company that it participates in the Exchange Offer, use its
best efforts to cause to be delivered at the request of an entity
stating that it represents the Participating Broker-Dealers (which
entity shall be Xxxxxxx Xxxxx, unless it elects not to act as such
representative) only one, if any, "cold comfort" letter with
respect to the Prospectus in the form existing on the last date
for which exchanges are accepted pursuant to the Exchange Offer
and with respect to each subsequent amendment or supplement, if
any, effected during the period specified in clause (C) below;
(C) to the extent any Participating Broker-Dealer notifies
the Company that it participates in the Exchange Offer, use its
best efforts to maintain the effectiveness of the Exchange Offer
Registration Statement for a period of one year following the
closing of the Exchange Offer; and
(D) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement as would otherwise be contemplated by
Section 3(b), or take any other action as a result of this Section
3(f), for a period exceeding 180 days after the last date for
which exchanges are accepted pursuant to the Exchange Offer (as
such period may be extended by the Company) and Participating
Broker-Dealers shall not be authorized by the Company to, and
shall not, deliver such Prospectus after such period in connection
with resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and, (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Notes with copies of any
request by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or for additional
information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon
as practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder
of Registrable Notes, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold and not bearing any restrictive legends; and cause such
Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at least two
business days prior to the closing of any sale of such Registrable Notes;
(k) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by Section
3(e)(vi) hereof, use its best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes, such Prospectus will not contain at
the time of such delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading. The Company agrees to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such
an event, and each Holder hereby agrees to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission. At such time as such public disclosure
is otherwise made or the Company determines that such disclosure is not
necessary, in each case to correct any misstatement of a material fact
or to include any omitted material fact, the Company agrees promptly to
notify each Holder of such determination and to furnish each Holder such
numbers of copies of the Prospectus, as amended or supplemented, as such
Holder may reasonably request;
(l) obtain a CUSIP number for all Exchange Notes, or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed
certificates for the Exchange Notes or the Registrable Notes, as the
case may be, in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes, or Registrable Notes, as the case
may be, (ii) cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute, and
use its best efforts to cause the Trustee to execute, all documents as
may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders) in order to expedite or facilitate the disposition of
such Registrable Notes and in such connection whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and warranties to the
Holders of such Registrable Notes and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be
reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority in principal amount of the
Registrable Notes being sold) addressed to each selling Holder and
the underwriters, if any, covering the matters customarily covered
in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested
by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed
to the underwriters, if any, and use reasonable best efforts to
have such letter addressed to the selling Holders of Registrable
Notes, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders for
the purpose of soliciting purchases of Registrable Notes, which
agreement shall be in form, substance and scope customary for
similar offerings;
(v) if an underwriting agreement is entered into, cause
the same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 5 hereof with respect to the
underwriters and all other parties to be indemnified pursuant to
said Section; and
(vi) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as and
to the extent required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the Holders of all
Registrable Notes of such underwritten offering at least 30 days prior
to the filing of a prospectus supplement for such underwritten offering.
Such notice shall (x) offer each such Holder the right to participate in
such underwritten offering, (y) specify a date, which shall be no
earlier than 10 days following the date of such notice, by which such
Holder must inform the Company of its intent to participate in such
underwritten offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Notes
and any underwriters participating in any disposition pursuant to a
Shelf Registration Statement and any counsel or accountant retained by
such Holders or underwriters, all financial and other records, pertinent
corporate documents and properties of the Company reasonably requested
by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all information
reasonably requested by any such representative, underwriter, special
counsel or accountant in connection with a Registration Statement;
(p) (i) in the case of an Exchange Offer, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers, and make such
changes in any such document prior to the filing thereof as any of the
Initial Purchasers or their counsel may reasonably request; (ii) in the
case of a Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part thereof, any
amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Notes, to the Initial Purchasers, to counsel on
behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Notes, if any, and make such
changes in any such document prior to the filing thereof as the Holders
of Registrable Notes, Xxxxxxx Xxxxx on behalf of such Holders, their
counsel and any underwriter may reasonably request unless the Company or
its counsel reasonably objects to such changes; and (iii) cause the
representatives of the Company to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Notes, Xxxxxxx Xxxxx on behalf of such Holders or any underwriter and
shall not at any time make any filing of any such document of which such
Holders, Xxxxxxx Xxxxx on behalf of such Holders, their counsel or any
underwriter shall not have previously been advised and furnished a copy
or to which such Holders, Xxxxxxx Xxxxx on behalf of such Holders, their
counsel or any underwriter shall reasonably object;
(q) in the case of a Shelf Registration, use their best efforts
to cause all Registrable Notes to be listed on any securities exchange
on which similar debt securities issued by the Company are then listed
if requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any;
(r) in the case of a Shelf Registration, use their best efforts
to cause the Registrable Notes to be rated with the appropriate rating
agencies, if so requested by the Majority Holders or by the underwriter
or underwriters of an underwritten offering of Registrable Notes, if
any, unless the Registrable Notes are already so rated;
(s) otherwise use their best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the provisions
of Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by
any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as
a condition to such Holder's participation in the Shelf Registration) require
each Holder of Registrable Notes to furnish to the Company such information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Notes as the Company may from time to time reasonably request in
writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in clauses
(ii) through (vi) of Section 3(e) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(k) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at the Company's
expense) all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable Notes
current at the time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable Notes pursuant to a Shelf
Registration Statement as a result of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(vi) hereof,
the Company shall be deemed to have used its best efforts to keep the Shelf
Registration Statement effective during such period of suspension provided
that the Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement
to the Shelf Registration Statement and shall extend the period during which
the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date
of the giving of such notice to and including the date when the Holders shall
have received copies of the supplemented or amended Prospectus necessary to
resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
5. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Holder (including the Initial Purchasers and
Participating Broker-Dealers), and the respective directors, officers,
employees and agents of any Holder and each Person, if any, who controls any
of such parties within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(i) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which
Exchange Notes or Registrable Notes were registered under the 1933 Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided that (subject to
Section 5(c) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of securities and local
counsel selected in accordance with Section 5(c)), reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchasers, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) In the case of a Shelf Registration, each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Initial Purchasers, each underwriter who participates in an offering of
Registrable Notes and the other selling Holders and each of their respective
directors and officers (including each officer of the Company who signed the
Registration Statement) and each Person, if any, who controls the Company,
each Initial Purchaser, any underwriter or any other selling Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all losses, liabilities, claims, damages and expenses described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Holder,
as the case may be, expressly for use in the Registration Statement (or any
amendment thereto), or the Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Notes pursuant to such Shelf Registration
Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as
a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 5(a) above, counsel to the
indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case of
parties indemnified pursuant to Section 5(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel, in addition to any local counsel, for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations
or circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 5 (whether or not the indemnified parties are actual
or potential parties thereof), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, the Initial Purchaser and the Holders, from
the offering of the Exchange Notes or Registrable Notes included in such
offering or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company, the Initial Purchasers, and the Holders, in connection with
the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, the Initial Purchasers,
and the Holders shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Initial Purchasers or the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Initial
Purchasers and the Holders of the Registrable Notes agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity, and the Holders were treated as one entity, for such purpose) or by
another method of allocation which does not take account of the equitable
considerations referred to above in this Section 5. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 5 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by an governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any 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 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 5, each
person, if any, who controls an Initial Purchaser or Holder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the
same rights to contribution as such Initial Purchaser or Holder, and each
director of the Company and each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The parties hereto
agree that any underwriting discount or commission or reimbursement of fees
paid to any Initial Purchaser pursuant to the Purchase Agreement shall not be
deemed to be a benefit received by any Initial Purchaser in connection with
the offering of the Exchange Notes or Registrable Notes in such offering.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Company is subject to the reporting requirements of Section 13 or 15 of
the 1934 Act, the Company covenants that it will file the reports required to
be filed by it under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act
and the rules and regulations adopted by the SEC thereunder, that if it ceases
to be so required to file such reports, it will upon the request of any Holder
of Registrable Notes (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act and (ii)
deliver such information to a prospective purchaser as is necessary to permit
sales pursuant to Rule 144A under the 1933 Act. Upon the request of any
Holder of Registrable Notes, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of
Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or departure; provided, however, that no amendment,
modification, supplement or waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 6(d), which address initially is, with respect to an Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is 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.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees 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 Registrable
Notes in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes,
in any manner, whether by operation of law or otherwise, such Registrable
Notes shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Notes, such Person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions 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.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent they deem such enforcement necessary or advisable to protect their
rights hereunder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXX-XXXXXX SECURITY
CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
Confirmed and accepted as of
the date first above
written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
BT SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON
CIBC WOOD GUNDY SECURITIES CORP.
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
