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Exhibit (4)(a)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of May 17,
1999, among Safety-Kleen Corp. (formerly known as Xxxxxxx Environmental
Services, Inc.), a Delaware corporation (the "Company"), and TD Securities (USA)
Inc. ("TD Securities"), NationsBanc Xxxxxxxxxx Securities LLC ("NationsBanc")
and Xxxxxxx Xxxxx & Associates, Inc. ("Xxxxxxx Xxxxx", and together with TD
Securities and NationsBanc, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated May 10,
1999 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 $225,000,000 principal amount of the Company's 9 1/4% Senior Notes
due 2009 (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.
1. Definitions. For purposes of this Agreement, the following terms shall
have the following respective meanings:
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing" shall mean the date of the closing of the issuance and
sale of the Initial Notes pursuant to the Purchase Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Company" shall have the meaning set forth in the preamble of this
Agreement and also includes the Company's successors.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
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"Electing Holder" shall mean any holder of Registrable Notes that
has returned a completed and signed Notice and Questionnaire to the
Company in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Notes" shall have the meaning assigned thereto in Section
2(a) hereof.
The term "holder" shall mean each of the Initial Purchasers and
other persons who acquire Registrable Notes from time to time (including
any successors or assigns), in each case for so long as such person owns
any Registrable Notes.
"Indenture" shall mean the Indenture, dated as of May 17, 1999,
between the Company and The Bank of Nova Scotia Trust Company of New York,
as trustee, as the same shall be amended from time to time.
"Initial Notes" shall have the meaning set forth in the preamble to
this Agreement.
"NationsBanc" shall have the meaning set forth in the preamble to
this Agreement.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
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"Xxxxxxx Xxxxx" shall have the meaning set forth in the preamble to
this Agreement.
"Registrable Notes" shall mean the Initial Notes; provided, however,
that an Initial Note shall cease to be a Registrable Note when (i) in the
circumstances contemplated by Section 2(a) hereof, the Initial Note has
been exchanged for an Exchange Note in an Exchange Offer as contemplated
in Section 2(a) hereof (provided that any Exchange Note received by a
broker-dealer in an Exchange Offer in exchange for a Registrable Note that
was not acquired by the broker-dealer directly from the Company will also
be a Registrable Note through and including the earlier of the 90th day
after the Exchange Offer is completed or such time as such broker-dealer
no longer owns such Initial Note); (ii) in the circumstances contemplated
by Section 2(b) hereof, a Shelf Registration Statement registering such
Initial Note under the Securities Act has been declared or becomes
effective and such Initial Note has been sold or otherwise transferred by
the holder thereof pursuant to and in a manner contemplated by such
effective Shelf Registration Statement; (iii) such Initial Note is sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Initial Note relating to restrictions on transferability thereof, under
the Securities Act or otherwise, is removed by the Company or pursuant to
the Indenture; (iv) such Initial Note is eligible to be sold pursuant to
paragraph (k) of Rule 144; or (v) such Initial Note shall cease to be
outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Notes outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Notes and (iv) a holder that is a broker-dealer, but only with respect to
Exchange Notes received by such broker-dealer pursuant to an Exchange
Offer in exchange for Registrable Notes acquired by the broker-dealer
directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
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"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof.
"TD Securities" shall have the meaning set forth in the preamble to
this Agreement.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, all as the same shall be amended from time to time.
2. Registration Under the Securities Act. (a) Except as set forth in
Section 2(b) below, the Company agrees to file under the Securities Act, as soon
as practicable, but no later than 60 days after the Closing, a registration
statement relating to an offer to exchange (such registration statement, the
"Exchange Registration Statement," and such offer, the "Exchange Offer") any and
all of the Initial Notes for a like aggregate principal amount at maturity of
debt securities issued by the Company, which debt securities are substantially
identical to the Initial Notes (and are entitled to the benefits of the
Indenture, which has been qualified under the Trust Indenture Act), except that
they have been registered pursuant to an effective registration statement under
the Securities Act and do not contain provisions for the additional interest
contemplated in Section 2(c) below (such new debt securities hereinafter called
"Exchange Notes"). The Company agrees to use its best efforts to cause the
Exchange Registration Statement to become effective under the Securities Act as
soon as practicable, but no later than 150 days after the Closing. The Exchange
Offer will be registered under the Securities Act on the appropriate form and
will comply with all applicable tender offer rules and regulations under the
Exchange Act. The Company further agrees to use its best efforts to commence and
complete the Exchange Offer promptly, but no later than 45 days after such
registration statement has become effective, hold the Exchange Offer open for at
least 30 days and issue Exchange Notes for all Registrable Notes that have been
properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been "completed" only
if the debt securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Notes are, upon receipt, transferable by each
such holder without need for further compliance with Section 5 of the Securities
Act and the Exchange Act (except for the requirement to deliver a prospectus
included in the Exchange Registration Statement applicable to resales by any
broker-dealer of Exchange Securities received by such broker-dealer pursuant to
an Exchange Offer in exchange for Registrable Notes other than those acquired by
the broker-dealer directly from the Company), and without material restrictions
under the blue sky or securities laws of a substantial majority of the States of
the United States of America. The Exchange Offer shall be deemed to have been
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completed upon the earlier to occur of (i) the Company having exchanged the
Exchange Notes for all outstanding Registrable Notes pursuant to the Exchange
Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer,
Exchange Notes for all Registrable Notes that have been properly tendered and
not withdrawn before the expiration of the Exchange Offer, which shall be on a
date that is at least 30 days following the commencement of the Exchange Offer.
The Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in connection with any resales of Exchange Notes by a
broker-dealer, other than resales of Exchange Notes received by a broker-dealer
pursuant to an Exchange Offer in exchange for Registrable Notes acquired by the
broker-dealer directly from the Company, and (y) to keep such Exchange
Registration Statement effective for a period (the "Resale Period") beginning
when Exchange Notes are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 90th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable
Notes. With respect to such Exchange Registration Statement, each broker-dealer
that holds Exchange Notes received in an Exchange Offer in exchange for
Registrable Notes not acquired by it directly from the Company shall have the
benefit of the rights of indemnification and contribution set forth in Sections
6 hereof.
(b) If prior to the time the Exchange Offer is completed existing
Commission interpretations are changed such that the Initial Notes received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Notes are not or would not be, upon receipt, transferable by each such holder
without need for further compliance with Section 5 of the Securities Act (except
for the requirement to deliver a prospectus included in the Exchange
Registration Statement applicable to resales by broker-dealers of Exchange
Securities received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Notes other than those acquired by the broker-dealer
directly from the Company), in lieu of conducting the Exchange Offer
contemplated by Section 2(a) the Company shall file under the Securities Act as
soon as practicable, but no later than the later of 30 days after the time such
obligation to file arises and 60 days after the Closing, a "shelf" registration
statement providing for the registration of, and the sale on a continuous or
delayed basis by the holders of, all of the Registrable Notes, pursuant to Rule
415 or any similar rule that may be adopted by the Commission (such filing, the
"Shelf Registration" and such registration statement, the "Shelf Registration
Statement"). In addition, in the event that the Initial Purchasers shall not
have resold all of the Initial Notes initially purchased by them from the
Company pursuant to the Purchase Agreement prior to the consummation of the
Exchange Offer, the Company shall file under the Securities Act as soon as
practicable a Shelf Registration Statement. The Company agrees to use its best
efforts (i) to cause the Shelf Registration Statement to become or be declared
effective no later than 180 days after Closing and to keep such Shelf
Registration Statement continuously effective in order to permit the prospectus
forming a part thereof to be usable by holders for resales of Registrable Notes
for a period ending on the earlier of the second anniversary of the Closing (or
the first anniversary if the Shelf Registration is filed because the Initial
Purchasers have not resold all of the Initial Notes) or such time as there are
no longer any Registrable Notes outstanding, provided, however, that no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration
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Statement or to use the prospectus forming a part thereof for resales of
Registrable Notes unless such holder is an Electing Holder, and (ii) after the
Effective Time of the Shelf Registration Statement, promptly upon the request of
any holder of Registrable Notes that is not then an Electing Holder, to take any
action reasonably necessary to enable such holder to use the prospectus forming
a part thereof for resales of Registrable Notes, including, without limitation,
any action necessary to identify such holder as a selling securityholder in the
Shelf Registration Statement, provided, however, that nothing in this clause
(ii) shall relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company further agrees to supplement or make amendments to
the Shelf Registration Statement, as and when required by the rules, regulations
or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to each
Electing Holder copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement on or prior to the 60th day after the Closing, or (ii)
such Exchange Registration Statement has not become effective or been declared
effective by the Commission on or before the 150th day after the Closing, or
(iii) the Exchange Offer is not consummated or a Shelf Registration Statement is
not declared effective on or prior to the 180th day after the Closing, or (iv)
any Exchange Registration Statement or Shelf Registration Statement required by
Section 2(a) or 2(b) hereof is filed and declared effective but shall thereafter
either be withdrawn by the Company or shall become subject to an effective stop
order issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically permitted
herein) without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default", then, as liquidated damages for each
such Registration Default, subject to the provisions of Section 9(b), the
interest rate borne by the Registrable Notes shall be increased by 0.25% per
annum following such 60-day period in the case of clause (i) above, following
such 150-day period in the case of clause (ii) above, following such 180-day
period in the case of clause (iii) above and following the date on which such
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, ceases to become effective in the case of clause (iv) above.
The amount of such additional interest will increase by an additional 0.25% for
each subsequent 90-day period until such Registration Default has been cured;
provided that the aggregate amount of such increase in the original interest
rate will in no event exceed 1.50% per annum. Upon (w) the filing of the
Exchange Offer Registration Statement after the 60-day period described in
clause (i) above, (x) the effectiveness of the Exchange Offer Registration
Statement after the 150-day period described in clause (ii) above, (y) the
consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement, as the case may be, after the 180-day period described
in clause (iii) above or (z) the effectiveness of a succeeding registration
statement after the date in clause (iv) above, the interest rate borne by the
Registrable Notes from the date of filing, effectiveness or consummation, as the
case may be, will be reduced to the original interest rate.
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(d) The Company shall take all reasonable actions necessary or advisable
to be taken by it to ensure that the transactions contemplated herein are
effected as so contemplated.
(e) Any reference herein to a registration statement as of any time shall
be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures. If the Company files a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but
no later than 60 days after the Closing, an Exchange Registration
Statement on any form which may be utilized by the Company and which shall
permit the Exchange Offer and resales of Exchange Notes by broker-dealers
during the Resale Period to be effected as contemplated by Section 2(a),
and use its best efforts to cause such Exchange Registration Statement to
become effective as soon as practicable thereafter, but no later than 150
days after the Closing;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Exchange Registration Statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement for the
periods and purposes contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange Notes
with such number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, as such broker-dealer
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reasonably may request prior to the expiration of the Resale Period, for
use in connection with resales of Exchange Notes;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing, (A) when such Exchange Registration
Statement or the prospectus included therein or any prospectus amendment
or supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or regulator of
any state with respect thereto or any request by the Commission for
amendments or supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Exchange Notes
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the Securities Act,
that such Exchange Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform in
all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that the Company would be required, pursuant to
Section 3(c)(iii)(F) above, to notify any broker-dealers holding Exchange
Notes, without unreasonable delay prepare and furnish to each such holder
a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange Notes during
the Resale Period, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and shall not 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 in light of the circumstances then
existing;
(v) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration Statement
or any post-effective amendment thereto at the earliest practicable date;
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(vi) use its reasonable best efforts to (A) register or qualify the
Exchange Notes under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a), if such registration or
qualification is required by such laws, no later than the commencement of
the Exchange Offer, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each broker-dealer
holding Exchange Notes to consummate the disposition thereof in such
jurisdictions; provided, however, that the Company shall not be required
for any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for
the requirements of this Section 3(c)(vi), (2) consent to general service
of process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or bylaws or any agreement between it and its
shareholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Notes by
broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Notes, not later than
the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of
such Exchange Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall, as soon as practicable (or as
otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but
in any case within the time periods specified in Section 2(b), a Shelf
Registration Statement on any form which may be utilized by the Company
and which shall register all of the Registrable Notes for resale by the
holders thereof in accordance with such method or methods of disposition
as may be specified by such of the holders as, from time to time, may be
Electing Holders and use their respective reasonable best efforts to cause
such Shelf Registration Statement to become effective as soon as
practicable but in any case within the time periods specified in Section
2(b);
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(ii) not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Notes; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the prospectus
forming a part thereof for resales of Registrable Notes at any time,
unless such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; provided, however, holders of Registrable Notes shall have at
least 28 calendar days from the date on which the Notice and Questionnaire
is first mailed to such holders to return a completed and signed Notice
and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement,
upon the request of any holder of Registrable Notes that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to take any action to name
such holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Notes until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Shelf Registration Statement and
the prospectus included therein as may be necessary to effect and maintain
the effectiveness of such Shelf Registration Statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such Shelf Registration Statement, and furnish to the Electing
Holders copies of any such supplement or amendment simultaneously with or
prior to its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Notes covered by such Shelf
Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf
Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters (which
term, for purposes of this Registration Rights Agreement, shall include a
person deemed to be an underwriter within the meaning of Section 2(11) of
the Securities Act), if any, thereof, (C) any sales or placement agent
therefor, (D) counsel for any such underwriter or agent and (E) not more
than one counsel for all the Electing Holders the opportunity to
participate in the preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
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(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable Notes pursuant to the
Shelf Registration such financial and other information and books and
records of the Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential, until
such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration statement or
otherwise), (B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject
to the requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement) or (C)
such information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to such
Shelf Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and regulations
of the Commission and does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof (which notification
may be made through any managing underwriter that is a representative of
such underwriter for such purpose) and confirm such advice in writing, (A)
when such Shelf Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has
been filed and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 3(d)(xvii) cease to be
true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of
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the Registrable Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose or (F) if at any time when
a prospectus is required to be delivered under the Securities Act, such
Shelf Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(ix) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any
placement or sales agent or any Electing Holder, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms of the
sale of such Registrable Notes, including information with respect to the
principal amount at maturity of Registrable Notes being sold by such
Electing Holder or agent or to any underwriters, the name and description
of such Electing Holder, agent or underwriter, the offering price of such
Registrable Notes and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Notes to be sold by such Electing Holder or agent or to such
underwriters; and make all required filings of such prospectus supplement
or post-effective amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales agent,
if any, therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(d)(vi) an executed copy (or, in the case
of an Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of an Electing Holder of
Registrable Notes, upon request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by reference
therein) and of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, and to permit such
Electing Holder, agent and underwriter to satisfy the
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prospectus delivery requirements of the Securities Act; and the Company
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in each case
in the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Notes covered by
the prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(xii) use its reasonable best efforts to (A) register or qualify the
Registrable Notes to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions as any
Electing Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to
remain effective under Section 2(b) above and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each such
Electing Holder, agent, if any, and underwriter, if any, to consummate the
disposition in such jurisdictions of such Registrable Notes; provided,
however, that the Company shall not be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein it would
not otherwise be required to qualify but for the requirements of this
Section 3(d)(xii), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to their respective certificates of
incorporation or bylaws or any agreement between it and its shareholders;
(xiii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder
or holders to offer, or to consummate the disposition of, their
Registrable Notes;
(xiv) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold, which certificates
shall be printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive legends; and, in
the case of an underwritten offering, enable such Registrable Notes to be
in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
the Registrable Notes;
(xv) provide a CUSIP number for all Registrable Notes, not later
than the applicable Effective Time;
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(xvi) enter into customary agreements (including, if requested, an
underwriting agreement in customary form) and take such other actions in
connection therewith as any Electing Holders aggregating at least a
majority in aggregate principal amount at maturity of the Registrable
Notes at the time outstanding shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Notes;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any portion of
the offering contemplated by the Shelf Registration is an underwritten
offering or is made through a placement or sales agent or any other
entity, (A) make such representations and warranties to the Electing
Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement filed
on the form applicable to the Shelf Registration; (B) obtain an opinion of
counsel to the Company in customary form and covering such matters, of the
type customarily covered by such an opinion, as the managing underwriters,
if any, or as any Electing Holders of at least a majority in aggregate
principal amount at maturity of the Registrable Notes at the time
outstanding may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof and dated the effective date of such
Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the Registrable
Notes, dated the date of the closing under the underwriting agreement
relating thereto); (C) obtain a comfort letter or letters from the
independent certified public accountants of the Company addressed to the
selling Electing Holders, the placement or sales agent, if any, therefor
or the underwriters, if any, thereof, dated (i) the effective date of such
Shelf Registration Statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such Shelf Registration Statement
or post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included in such
prospectus (and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus, dated the
date of the closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering such matters
of the type customarily covered by letters of such type; (D) deliver such
customary documents and certificates, including officers' certificates, as
may be reasonably requested by any Electing Holders of at least a majority
in aggregate principal amount at maturity of the Registrable Notes at the
time outstanding or the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) hereof and the
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compliance with or satisfaction of any agreements or conditions contained
in the underwriting agreement or other agreement entered into by the
Company; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in Section
5 hereof;
(xviii) notify in writing each holder of Registrable Notes of any
proposal by the Company to amend or waive any provision of this Agreement
pursuant to Section 8(c) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Notes or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers, Inc. ("NASD")
or any successor thereto, as amended from time to time) thereof, whether
as a holder of such Registrable Notes or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such Rules and
By-Laws, including by (A) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in such
Schedule (or any successor thereto)) to participate in the preparation of
the Shelf Registration Statement relating to such Registrable Notes, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Registrable Notes, (B) indemnifying any
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof (or to such
other customary extent as may be requested by such underwriter) and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules
of Fair Practice of the NASD; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the
effective date of such Shelf Registration Statement, an earning statement
of the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the Electing Holders, the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof, the
Company shall without delay prepare and furnish to each of the Electing Holders,
to each placement or sales agent, if any, and to each such underwriter, if any,
a reasonable number of copies of a prospectus supplemented or amended so
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that, as thereafter delivered to purchasers of Registrable Notes, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and shall not 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 in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt of
any notice from the Company pursuant to Section 3(d)(viii)(F) hereof, such
Electing Holder shall forthwith discontinue the disposition of Registrable Notes
pursuant to the Shelf Registration Statement applicable to such Registrable
Notes until such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such Electing Holder
shall deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Electing Holder's possession of the
prospectus covering such Registrable Notes at the time of receipt of such
notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice and Questionnaire,
the Company may require such Electing Holder to furnish to the Company such
additional information regarding such Electing Holder and such Electing Holder's
intended method of distribution of Registrable Notes as may be required in order
to comply with the Securities Act. Each such Electing Holder agrees to notify
the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder to the Company or of
the occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Notes or omits to
state any material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Notes required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly to furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Electing Holder or the disposition of such Registrable Notes, 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 in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing, the Company will
not, and will not permit any of its "affiliates" (as defined in Rule 144) to,
resell any of the Initial Notes that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act.
4. Registration Expenses. The Company agrees to bear and to pay or cause
to be paid promptly all expenses incident to the Company's performance of or
compliance with this Agreement, including (a) all Commission and any NASD
registration, filing and review fees and expenses (including reasonable fees and
disbursements of counsel for the placement or sales agent
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or underwriters in connection with such registration, filing and review with the
NASD), (b) all fees and expenses in connection with the qualification of the
Initial Notes for offering and sale under the State securities and blue sky laws
referred to in Section 3(d)(xii) hereof and determination of their eligibility
for investment under the laws of such jurisdictions as any managing underwriters
or the Electing Holders may reasonably designate (including any fees and
disbursements of counsel for the Electing Holders subject to the limitations of
clause (h) below) or underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Initial Notes for delivery and the expenses of
printing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Initial Notes to be disposed
of (including certificates representing the Initial Notes), (d) fees and
expenses of the Trustee under the Indenture, any agent of the Trustee and any
counsel for the Trustee and of any collateral agent or custodian, (e) internal
expenses (including all salaries and expenses of the Company's officers and
employees performing legal or accounting duties), (f) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance), (g) reasonable fees, disbursements
and expenses of any "qualified independent underwriter" engaged pursuant to
Section 3(d)(xix) hereof, (h) fees, disbursements and expenses of one counsel
for the Electing Holders retained in connection with a Shelf Registration, as
selected by the Electing Holders of at least a majority in aggregate principal
amount at maturity of the Registrable Notes held by Electing Holders (which
counsel shall be reasonably satisfactory to the Company), (i) any fees charged
by securities rating services for rating the Initial Notes, and (j) fees,
expenses and disbursements of any other persons, including special experts,
retained by the Company in connection with such registration (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by any holder of Registrable Notes or any placement or
sales agent therefor or underwriter thereof, the Company shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed or
paid promptly after receipt of a request therefor. Notwithstanding the
foregoing, the holders of the Registrable Notes being registered shall pay all
agency fees and commissions and underwriting discounts and commissions
attributable to the sale of such Registrable Notes and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above.
5. Indemnification. (a) The Company shall indemnify and hold harmless each
holder, including the Initial Purchasers, each underwriter who participates in
an offering of Registrable Notes, their respective affiliates, and their
respective directors, officers, employees and agents, and each person, if any,
who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
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(i) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of or based upon 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 Securities
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 included in any such
Registration Statement (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 counsel), 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 (i) 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 or any underwriter expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the prospectus included in such Registration Statement (or any amendment or
supplement thereto) and (ii) the Company shall not be liable to any indemnified
party under this indemnity agreement with respect to the Registration Statement
or prospectus to the extent that any such loss, claim, damage or liability of
such indemnified party results solely from an untrue statement of a material
fact contained in, or the omission of a material fact from, the Registration
Statement or prospectus which untrue statement or omission was corrected in an
amended or supplemented Registration Statement or prospectus, if the person
alleging such loss, claim, damage or liability was not sent or given, at or
prior to the written confirmation of such sale, a copy of the amended or
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supplemented Registration Statement or prospectus if the Company had previously
furnished copies thereof to such indemnified party and if delivery of a
prospectus is required by the Securities Act and was not so made. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(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 each 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 Securities Act or Section 20 of the Exchange 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 in writing 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 case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party); provided, however, that if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have been advised by counsel that there may be
one or more legal defenses available to it and/or other indemnified parties that
are different from or additional to those available to the indemnifying party,
or (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after receipt by the indemnifying party of notice of the
institution of such action, then, in each such case, the indemnifying party
shall not have the right to direct the defense of such action on
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behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that in connection with such
action the indemnifying party shall not be liable for the reasonable fees and
expenses of more than one separate counsel (in addition to any local counsel) in
any one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchasers in the case of paragraph (a) of this
Section 5 or the Company in the case of paragraph (b) of this Section 5,
representing the indemnified parties under such paragraph (a) or paragraph (b),
as the case may be, who are parties to such action or actions) or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. 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 at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel and the indemnifying party is obligated to reimburse the
indemnified party under the foregoing provisions of this Section 5, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 5(a)(ii) hereof effected without its written
consent if (i) such settlement is entered into more than 20 business days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least five business days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) 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
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is appropriate to reflect the relative benefits received by the Company, the
Initial Purchasers 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 any 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 Securities Act) 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
Securities Act or Section 20 of the Exchange 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 Securities Act or Section 20 of the Exchange 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. Underwritten Offerings. (a) Selection of Underwriters. If any of the
Registrable Notes covered by the Shelf Registration are to be sold pursuant to
an underwritten offering, the managing underwriter or underwriters thereof shall
be designated by Electing Holders holding at least a majority in aggregate
principal amount at maturity of the Registrable Notes to be included in such
offering, provided that such designated managing underwriter or underwriters is
or are reasonably acceptable to the Company.
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(b) Participation by Holders. Each holder of Registrable Notes hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) 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 (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7. Rules 144 and 144A. The Company covenants to the holders of Registrable
Notes that to the extent the Company shall be required to do so under the
Exchange Act, the Company shall use its reasonable best efforts to timely file
the reports required to be filed by it under the Exchange Act or the Securities
Act and the rules and regulations adopted by the Commission thereunder, and
shall take such further action as any holder of Registrable Notes may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Notes without registration under the Securities Act within the
limitations of the exemption provided by Rules 144 and 144A under the Securities
Act, as such Rule may be amended from time to time, or any similar or successor
rule or regulation hereafter adopted by the Commission. Upon the request of any
holder of Registrable Notes in connection with that holder's sale pursuant to
Rule 144 or 144A, the Company shall deliver to such holder a written statement
as to whether it has complied with such requirements.
8. Miscellaneous. (a) No Inconsistent Agreements. The Company has not, as
of the date hereof, 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.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Initial Purchasers and the holders from time
to time of the Registrable Notes may be irreparably harmed by any such failure,
and accordingly agree that the Initial Purchasers and such holders, in addition
to any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of the Company under
this Agreement in accordance with the terms and conditions of this Agreement, in
any court of the United States or any State thereof having jurisdiction.
(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
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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, telex, 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 8(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 8(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, however, 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 and the
Initial Purchasers, 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.
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(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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SAFETY-KLEEN CORP.
(formerly known as Xxxxxxx
Environmental Services, Inc.)
By:
---------------------------------------
Name:
Title:
Confirmed and accepted as
of the date first above written:
TD SECURITIES (USA) INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
By: TD SECURITIES (USA) INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SAFETY-KLEEN CORP.
(formerly known as Xxxxxxx
Environmental Services, Inc.)
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President of Finance
and Chief Financial Officer
Confirmed and accepted as
of the date first above written:
TD SECURITIES (USA) INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
By: TD SECURITIES (USA) INC.
By:
---------------------------------------
Name:
Title:
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Exhibit A
SAFETY-KLEEN CORP.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE](1)
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in Safety-Kleen Corp. (the
"Company") 9 1/4% Senior Notes due 2009 (the "Notes") are held.
The Company is in the process of registering the Notes under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Notes included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Notes receive a copy of the
enclosed materials as soon as possible as their rights to have the Notes
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the Notes
through you. If you require more copies of the enclosed materials or have any
questions pertaining to this matter, please contact Safety-Kleen Corp., 0000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General
Counsel.
--------
(1) Not less than 28 calendar days from date of mailing.
A-1
28
SAFETY-KLEEN CORP.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") among Safety-Kleen Corp. (the "Company") and
the Initial Purchasers named therein. Pursuant to the Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form [___] (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
9 1/4% Senior Notes due 2009 (the "Notes"). A copy of the Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Notes (as defined below) is entitled
to have the Registrable Notes beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Notes included in the Shelf
Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners of
Registrable Notes who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling securityholders in
the Shelf Registration Statement and (ii) may not use the Prospectus forming a
part thereof for resales of Registrable Notes.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Notes are advised to
consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
A-2
29
The term "Registrable Notes" is defined in the Registration Rights
Agreement.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Notes
hereby elects to include in the Shelf Registration Statement the Registrable
Notes beneficially owned by it and listed below in Item (3). The undersigned, by
signing and returning this Notice and Questionnaire, agrees to be bound with
respect to such Registrable Notes by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement, including, without
limitation, Section 6 of the Registration Rights Agreement, as if the
undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Notes pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-3
30
QUESTIONNAIRE
(i) (A) Full Legal Name of Selling Securityholder:
____________________________________________________________________
(B) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Notes Listed in Item (3) below:
____________________________________________________________________
(C) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Notes Listed in Item
(3) below are Held:
____________________________________________________________________
(ii) Address for Notices to Selling Securityholder:
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Telephone: _________________________
Fax: _________________________
Contact Person: _________________________
(iii) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(A) Principal amount at maturity of Registrable Notes beneficially
owned:_________
CUSIP No(s). of such Registrable Notes:_____________________________
(B) Principal amount at maturity of Securities other than Registrable
Notes beneficially owned:___________________________________________
CUSIP No(s). of such other Securities:______________________________
A-4
31
(C) Principal amount at maturity of Registrable Notes which the
undersigned wishes to be included in the Shelf Registration
Statement:__________________________________________________________
CUSIP No(s). of such Registrable Notes to be included in the Shelf
Registration Statement:_____________________________________________
(iv) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(v) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(vi) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Notes listed above in Item (3) only as follows (if
at all): Such Registrable Notes may be sold from time to time directly by the
undersigned Selling Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Notes may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation service on
which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Notes or
otherwise, the Selling
A-5
32
Securityholder may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Notes in the course of
hedging the positions they assume. The Selling Securityholder may also sell
Registrable Notes short and deliver Registrable Notes to close out such short
positions, or loan or pledge Registrable Notes to broker-dealers that in turn
may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M (which governs manipulation, stabilization and trading
activity during a distribution of securities).
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Notes listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company, and any underwriters in an underwritten
offering of such Selling Securityholder's Registrable Notes listed in Item(3)
above, in connection with the preparation of the Shelf Registration Statement
and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(d) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
A-6
33
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
Safety-Kleen Corp.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
(ii) With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable Notes
beneficially owned by such Selling Securityholder and listed in Item (3) above.
This Agreement shall be governed in all respects by the laws of the State of New
York.
A-7
34
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: ________________
__________________________________________
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Notes)
By:_______________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
A-8
35
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Name]
[Address]
Attention: Trust Officer
Re: Safety-Kleen Corp. (the "Company")
9 1/4% Senior Notes due 2009
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount at maturity of the above-referenced
Notes pursuant to an effective Registration Statement on Form [___] (File No.
333-____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, 199_ or in supplements thereto, and that the
aggregate principal amount at maturity of the Notes transferred are the Notes
listed in such Prospectus opposite such owner's name.
Dated:
Very truly yours,
_______________________________
(Name)
By:____________________________
(Authorized Signature)
B-1
