EXHIBIT 1.1
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
XXXXXXX HOLDINGS (N.A.), INC.
as Issuer
14 3/4% SENIOR DISCOUNT NOTES DUE 2014
Dated as of April 29, 2004
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CREDIT SUISSE FIRST BOSTON LLC,
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of April 29, 2004, by and among Xxxxxxx Holdings (N.A.), Inc., a
Delaware corporation (the "Company"), and Credit Suisse First Boston LLC,
Deutsche Bank Securities Inc., and X.X. Xxxxxx Securities Inc. (collectively,
the "Purchasers"), who have agreed to purchase the Company's units, each
consisting of $1,000 principal amount at maturity of 14 3/4% Senior Discount
Notes due 2014 (the "Initial Notes") and a warrant to purchase 109.80889 shares
of the Company's Class A common stock, par value $0.01 per share pursuant to
the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated April 22,
2004 (the "Purchase Agreement"), by and among the Company and the Purchasers.
In order to induce the Purchasers to purchase the Initial Notes, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Purchasers set forth in Section 6 of the Purchase Agreement. Capitalized
terms used herein and not otherwise defined shall have the meaning assigned to
them in the Indenture, dated as of April 29, 2004 (the "Indenture"), between
the Company and Law Debenture Trust Company of New York, as Trustee (the
"Trustee").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Additional Interest: As defined in Section 5 hereof.
Affiliate: As defined in Rule 144.
Affiliated Market Maker: A Broker-Dealer or one of its Affiliates who is
deemed to be an Affiliate of the Company and intends to make a market in the
Exchange Notes.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Definitive Notes, as defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Exchange
Notes to be issued in the Exchange Offer, (b) the keeping of the Exchange Offer
open for a period not less than the period required pursuant to Section 3(b)
hereof and (c) the delivery by the Company to the Registrar under the Indenture
of Exchange Notes (as defined below) in the same aggregate principal amount at
maturity as the aggregate principal amount of Notes validly tendered and not
withdrawn by Holders (as defined below) thereof pursuant to the Exchange Offer.
Consummation Date: The date on which the Exchange Offer is Consummated.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Company's 14 3/4% Senior Discount Notes due 2014 to be
issued pursuant to the Indenture (i) in the Exchange Offer or (ii) as
contemplated by Section 6(b) hereof.
Exchange Offer: The exchange and issuance by the Company of a principal
amount at maturity of Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the principal amount at maturity of
Initial Notes that are validly tendered and not withdrawn in connection with
such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Notes: The Initial Notes and the Exchange Notes together.
Participating Broker Dealer: As defined in Section 3(a) hereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case, (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein
and all exhibits thereto.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb), as
in effect on the date of the Indenture.
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Transfer Restricted Securities: Each (a) Initial Note, until the earliest
to occur of (i) the date on which such Initial Note is exchanged in the
Exchange Offer for an Exchange Note that is entitled to be resold to the public
by the holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (ii) the date on which such Initial Note
has been disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Exchange Notes), and (iii) the date on
which such Initial Note is distributed to the public pursuant to Rule 144 under
the Act and (b) Exchange Note issued to a Participating Broker-Dealer in the
Exchange Offer until the date on which such Exchange Note is disposed of by
such Participating Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person is the holder of record of Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law or Commission policy (after the procedures set forth in Section 6(a)(i)
hereof have been complied with), the Company shall use its reasonable best
efforts to (i) cause the Exchange Offer Registration Statement to be filed with
the Commission as promptly as practicable after the Closing Date, but in no
event later than 90 days after the Closing Date (such 90th day, the "Filing
Deadline"), (ii) cause such Exchange Offer Registration Statement to become
effective as promptly as practicable, but in no event later than 180 days after
the Closing Date (such 180th day, the "Effectiveness Deadline"), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, and (B) subject to the proviso in Section 6(c)(xii)
hereof, cause all necessary filings, if any, in connection with the
registration and qualification of the Exchange Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and, within the time periods contemplated by
Section 3(b) hereof, Consummate the Exchange Offer. The Exchange Offer shall be
on the appropriate form permitting (i) registration of the Exchange Notes to be
offered in exchange for the Initial Notes that are Transfer Restricted
Securities and (ii) resales of Exchange Notes by Broker-Dealers that tendered
into the Exchange Offer Initial Notes that such Broker-Dealer acquired for its
own account as a result of its market-making activities or other trading
activities (other than Initial Notes acquired directly from the Company or any
of its Affiliates) as contemplated by Section 3(c) hereof (each, a
"Participating Broker Dealer").
(b) The Company shall use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided that in no event shall such period be less than 20
Business Days. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Exchange Notes shall be included in the Exchange Offer Registration Statement.
The Company shall use its reasonable best efforts to cause the Exchange Offer
to be Consummated within 30 Business Days after the Exchange Offer Registration
Statement has become effective, but in no event later than 40 Business Days
after the Effectiveness Deadline (such 40th day, the "Consummation Deadline").
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(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Initial Notes
acquired directly from the Company or any of its Affiliates), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission.
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Company shall
permit the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such prospectus delivery requirement
for a period of 90 days following the Consummation Date. To the extent
necessary to ensure that the Prospectus contained in the Exchange Offer
Registration Statement is available for sales of Exchange Notes by
Broker-Dealers, the Company agrees to use its reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections
6(a) and (c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of 90 days from the Consummation Date or such
shorter period as will terminate when no Transfer Restricted Securities are
outstanding. The Company shall provide sufficient copies of the latest version
of such Prospectus to such Broker-Dealers, promptly upon request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law or Commission policy (after the Company has complied with the
procedures set forth in Section 6(a)(i) hereof) or (ii) if any Holder of
Transfer Restricted Securities shall notify the Company in writing within 20
Business Days following the Consummation Deadline that (A) based on an opinion
of counsel, such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder is a Broker-Dealer and
holds Initial Notes acquired directly from the Company or any of its Affiliates
or is an Affiliate Market Maker, then the Company shall:
(x) cause to be filed, on or prior to 90 days after the earlier of
(i) the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of Section 4(a)(i)
hereof and (ii) the date on which the Company receives the notice
specified in Section 4(a)(ii) hereof (90 days after such earlier date, the
"Filing Deadline"), a shelf registration statement (the "Shelf
Registration Statement") pursuant to Rule 415 under the Act (which may be
an amendment to the Exchange Offer Registration Statement) relating to (1)
all Transfer Restricted Securities in the case of clause (a)(i) above or
(2) the Transfer Restricted Securities specified in any notice in the case
of clause (a)(ii) above; and
(y) shall use its reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after
the Filing Deadline for the Shelf Registration Statement (such 90th day,
the "Effectiveness Deadline"), (clauses (x) and (y) together, the "Shelf
Registration").
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If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) hereof, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., Section
4(a)(i) hereof), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company shall
use its reasonable best efforts to keep any Shelf Registration Statement
required by this Section 4(a) continuously effective, supplemented, amended and
current as required by and subject to the provisions of Sections 6(b) and (c)
hereof and in conformity with the requirements of this Agreement, the Act
(including, but not limited to, Section 10 of the Act and Items 507 and 508 of
Regulation S-K under the Act) and the policies, rules and regulations of the
Commission as announced from time to time, until the later of (a) the date on
which no Broker Dealer making a market in the Exchange Notes is deemed to be an
Affiliate of the Company, and (b) the earlier of the second anniversary of the
Closing Date (as such date may be extended pursuant to Section 6(d) hereof) and
such earlier date when no Transfer Restricted Securities covered by such Shelf
Registration Statement remain outstanding.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Additional Interest pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
(c) Holders of Transfer Restricted Securities that do not give the written
notice within the 20 Business Day period set forth in Section 4(a)(ii) hereof,
if required to be given, will no longer have any registration rights pursuant
to this Section 4 and will not be entitled to any Additional Interest pursuant
to Section 5 hereof in respect of the Company's obligations with respect to the
Shelf Registration Statement. Notwithstanding the foregoing, no Broker-Dealer
that is an Affiliate of the Company shall be required to give such written
notice or deliver an opinion in order to maintain its registration rights
pursuant to this Section 4.
SECTION 5. ADDITIONAL INTEREST
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any
such Registration Statement has not been declared effective by the Commission
on or prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer
(if required) has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose during the period it is required to be
effective pursuant to the terms hereof without being succeeded within ten
Business Days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective within ten Business
Days of filing such post-effective amendment to such Registration
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Statement (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the Company agrees to pay to each Holder of
Transfer Restricted Securities affected thereby additional interest
("Additional Interest") in an amount equal to 0.25% per annum of the Accreted
Value (calculated as of the date of the Registration Default) of Transfer
Restricted Securities held by such Holder for the first 90-day period
immediately following the occurrence of such Registration Default. The amount
of the Additional Interest shall increase by an additional 0.25% per annum on
such Accreted Value (calculated as of the beginning of such subsequent 90-day
period) of Transfer Restricted Securities held by such Holder with respect to
each subsequent 90-day period until all Registration Defaults have been cured,
up to a maximum amount of Additional Interest of 0.50% per annum of Transfer
Restricted Securities held by such Holder; provided that the Company shall in
no event be required to pay Additional Interest for more than one Registration
Default with respect to the Notes. Notwithstanding anything to the contrary set
forth herein, (1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (i)
above, (2) upon the effectiveness of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (ii)
above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above,
(4) upon the filing of a post-effective amendment to the Registration Statement
or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or made usable in the case of (iv)
above, or (5) if sooner, upon the first date on which no Transfer Restricted
Securities remain outstanding, in the case of clauses (i) through (iv) above,
the Additional Interest payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii), (iii) or (iv), as applicable,
shall cease.
All accrued Additional Interest shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture
and the Notes on each April 15 and October 15, as more fully set forth in the
Indenture and the Notes. Notwithstanding the fact that any securities for which
Additional Interest is due cease to be Transfer Restricted Securities, all
obligations of the Company to pay Additional Interest with respect to
securities that accrued prior to the time such securities ceased to be Transfer
Restricted Securities shall survive until such time as such obligations with
respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company shall (x) comply with all applicable provisions of Section
6(c) hereof, (y) use its reasonable best efforts to effect such exchange and to
permit the resale of Exchange Notes by Participating Broker-Dealers that
tendered in the Exchange Offer Initial Notes that such Broker-Dealer acquired
for its own account as a result of its market-making activities or other
trading activities (other than Initial Notes acquired directly from the Company
or any of its Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers, such as the Exchange
Offer, that, in the opinion of counsel to the Company, raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such Transfer Restricted
Securities. The Company hereby agrees to use its reasonable best efforts
in pursuing the issuance of such a decision to the Commission staff level.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker-Dealer) shall
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furnish, upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that, at the time of Consummation of
the Exchange Offer, (A) any Exchange Notes received by such Holder will be
acquired in the ordinary course of its business, (B) such Holder will have
no arrangement or understanding with any person to participate in the
distribution of the Initial Notes or the Exchange Notes within the meaning
of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer
but will not receive Exchange Notes for its own account in exchange for
Initial Notes, neither the Holder nor any such other Person is engaged in
or intends to participate in a distribution of the Exchange Notes, and (D)
that such Holder is not an Affiliate of the Company. If the Holder is a
Broker-Dealer that will receive Exchange Notes for its own account in
exchange for Initial Notes, it will represent that the Notes to be
exchanged for the Exchange Notes were acquired by it as a result of its
market-making activities or other trading activities, and will acknowledge
that it will deliver a prospectus meeting the requirements of the Act in
connection with any resale of such Exchange Notes. It is understood that,
by acknowledging that it will deliver, and by delivering, a prospectus
meeting the requirements of the Act in connection with any resale of such
Exchange Notes, the Holder is not admitting that it is an "underwriter"
within the meaning of the Act.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988) and Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991), as interpreted in the Commission's letter
to Shearman & Sterling dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall:
(i) comply with all the provisions of Section 6(c) hereof and use its
reasonable best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate
form under the Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Notes
covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Notes having an aggregate principal amount at maturity
equal to the aggregate principal amount at maturity of Notes sold pursuant
to the Shelf Registration Statement and surrendered to the Company for
cancellation; the Company shall register Exchange Notes on the Shelf
Registration Statement for this purpose and
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issue the Exchange Notes to the purchaser(s) of securities subject to the
Shelf Registration Statement in the names as such purchaser(s) shall
designate.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Company shall, during
the periods specified in Sections 3 and 4 hereof, as applicable:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement,
as applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement or a supplement to
the Prospectus, as applicable, curing such defect, and, in the case of an
amendment, use its reasonable best efforts to cause such amendment to be
declared effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) advise each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement (in the case of the Shelf
Registration Statement) and Affiliated Market Maker promptly and, if
requested by such Person, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any applicable Registration Statement or
any post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities commission of
the qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, and (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted
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Securities under state securities or Blue Sky laws, the Company shall use
its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) subject to Section 6(d), if any fact or event contemplated by
Section 6(c)(iii)(D) hereof shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(v) furnish to each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement (in the case of the Shelf
Registration Statement) and each Affiliated Market Maker in connection
with such sale, if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial
filing of such Registration Statement), which documents (other than
Exchange Act Reports incorporated by reference therein or filed as
supplements thereto) will be subject to the review and comment of such
Persons, if any, for a period of at least five Business Days, and the
Company will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Persons shall reasonably object within five Business Days after the
receipt thereof. Such Persons shall be deemed to have reasonably objected
to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading or fails to comply with the
applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus
(other than Exchange Act Reports), provide copies of such document to each
Holder whose Transfer Restricted Securities have been included in a Shelf
Registration Statement (in the case of the Shelf Registration Statement)
and each Affiliated Market Maker in connection with such sale or exchange,
if any, make the Company's representatives available for discussion of
such document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such Persons
may reasonably request;
(vii) make available, at reasonable times, for inspection by each
Holder whose Transfer Restricted Securities have been included in a Shelf
Registration Statement (in the case of the Shelf Registration Statement)
and each Affiliated Market Maker and any attorney or accountant retained
by such Persons, all financial and other records, pertinent corporate
documents of the Company and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
Persons, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(viii) if requested by any Holders whose Transfer Restricted
Securities have been included in a Shelf Registration Statement (in the
case of the Shelf Registration Statement) or any Affiliated Market Maker,
promptly include in any Registration Statement or Prospectus, pursuant to
a supplement or post-effective amendment if necessary, such information as
such Persons may
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reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities and the use of the Registration Statement
or Prospectus for market-making activities; and make all required filings
of such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement (in the case of the Shelf
Registration Statement) in connection with such exchange or sale and each
Affiliated Market Maker, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement and each Affiliated Market
Maker without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use (in
accordance with law and subject to Section 6(d) hereof) of the Prospectus
and any amendment or supplement thereto by each selling Person in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto and all market-making activities of such Affiliated Market Maker,
as the case may be;
(xi) upon the request of any Holder whose Transfer Restricted
Securities have been included in a Shelf Registration Statement (in the
case of the Shelf Registration Statement) or the Purchasers, enter into
such agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
such Person in connection with any sale or resale pursuant to any
applicable Registration Statement. In such connection, and also in
connection with market making activities by any Affiliated Market Maker,
the Company shall:
(A) upon request of any such Person, furnish (or in the case of
paragraphs (2) and (3), use its reasonable best efforts to cause to be
furnished) to each Holder (in the case of the Shelf Registration
Statement) and the Purchasers, upon Consummation of the Exchange Offer or
upon the effectiveness of the Shelf Registration Statement, as the case
may be:
(1) a certificate, dated such date, signed on behalf of the
Company by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Company, confirming,
as of the date thereof, the matters set forth in the officers'
certificate to be delivered pursuant to Section 6(i) of the Purchase
Agreement and such other similar matters as such Person may
reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Company covering
matters similar to those set forth in Sections 6(c) through (g) of
the Purchase Agreement and such other matters as such Person may
reasonably request, and in any event including a statement to the
effect that such counsel has participated in conferences with
officers and other representatives of the Company and representatives
of the independent public accountants for the
10
Company and have considered the matters required to be stated therein
and the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the
foregoing (relying as to materiality to the extent such counsel deems
appropriate upon the statements of officers and other representatives
of the Company and without independent check or verification), no
facts came to such counsel's attention that caused such counsel to
believe that the applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto became
effective and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the Exchange Offer,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of the Exchange
Offer, as of the date of Consummation, contained an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may state further that such
counsel expresses no belief as to, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements and schedules and other financial and statistical data
derived therefrom, in any Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of Consummation
of the Exchange Offer, or as of the date of effectiveness of the
Shelf Registration Statement, as the case may be, from the Company's
independent accountants, in the customary form and covering matters
of the type customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section 6(a) of
the Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such Persons to evidence compliance with the
matters covered in clause (A) above and with any customary conditions
contained in any agreement entered into by the Company pursuant to this
clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with
the registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided that the Company shall not be required to register or qualify as
a foreign corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold
11
and not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the selling
Holders may request at least two Business Days prior to such sale of
Transfer Restricted Securities;
(xiv) use its reasonable best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with The Depository Trust
Company;
(xvi) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 under the Act (which need
not be audited) covering a twelve-month period beginning after the
effective date of the Registration Statement (as such term is defined in
Rule 158(c) under the Act); and
(xvii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to each of the Indenture as may be
required for each such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its reasonable best efforts to cause
the Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable each such Indenture to be so qualified in a timely
manner.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from
the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such Person will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until (i) such Person has received copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(iv)
hereof, or (ii) such Person is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "Recommencement Date"). Each Person receiving a Suspension
Notice hereby agrees that it will either (i) destroy any Prospectuses, other
than permanent file copies, then in such Person's possession which have been
replaced by the Company with more recently dated Prospectuses or (ii) deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Person's possession of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of the
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
12
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i)
all registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Exchange
Notes to be issued in the Exchange Offer and printing of Prospectuses (whether
for exchanges, sales, market-making or otherwise), messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the
Company; (v) all application and filing fees in connection with listing the
Exchange Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement, the Company will reimburse the Purchasers and the Holders of
Transfer Restricted Securities who are selling or reselling Notes or Exchange
Notes pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, for
the reasonable fees and disbursements of not more than one counsel, who shall
be chosen by the Holders of a majority in principal amount at maturity of the
Transfer Restricted Securities for whose benefit such Registration Statement is
being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each holder of the
Notes, any Participating Broker-Dealer and each person, if any, who controls
such holder or such Participating Broker-Dealer within the meaning of the Act
or the Exchange Act (each holder of Notes, any Participating Broker-Dealer and
such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to sales of the Notes)
to which each Indemnified Party may become subject under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration in reliance upon and in conformity with
written information pertaining to such holder of Notes and furnished to the
Company by or on behalf of such holder specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary
13
prospectus relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any holder
of Notes or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes concerned, to the
extent that a prospectus relating to such Securities was required to be
delivered by such holder or Participating Broker-Dealer under the Act in
connection with such purchase and any such loss, claim, damage or liability of
such holder or Participating Broker-Dealer results from the fact that there was
not sent or given to such person, at or prior to the written confirmation of
the sale of such Securities to such person, a copy of the final prospectus if
the Company had previously furnished copies thereof to such holder or
Participating Broker-Dealer; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also indemnify underwriters,
their officers and directors and each person who controls such underwriters
within the meaning of the Act or the Exchange Act to the same extent as
provided above with respect to the indemnification of the holders of the Notes
if requested by such holders.
(b) Each holder of the Notes, severally and not jointly, will indemnify
and hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Act or the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect thereof, to which the
Company or any such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or omission or alleged untrue statement or omission
was made in reliance upon and in conformity with written information pertaining
to such holder of Notes and furnished to the Company by or on behalf of such
holder specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company or
any such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve the indemnifying party from any
liability that it may have under subsection (a) or (b) above except to the
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. 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), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action
14
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action,
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Notes, pursuant to the
Exchange Offer, or (ii) if the allocation provided by the foregoing 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 indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such holder of Notes or
such other indemnified party, as the case may be, on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding any other provision of
this Section 8(d), the holders of the Notes shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
holders from the sale of the Notes pursuant to a Registration Statement exceeds
the amount of damages which such holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each person, if any, who controls such indemnified party within
the meaning of the Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls
the Company within the meaning of the Act or the Exchange Act shall have the
same rights to contribution as the Company.
(e) The agreements contained in this Section 8 shall survive the sale of
the Notes pursuant to a Registration Statement and shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any indemnified party.
(f) The Company agrees that the indemnity and contribution provisions of
this Section 8 shall apply to the Affiliated Market Makers to the same extent
and on the same conditions, as it applies to holders of the Notes.
SECTION 9. RULE 144A and RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act (unless
exempt therefrom pursuant to Rule 12h-5), to make available, upon request of
any
15
Holder, to such Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities designated by such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii)
is subject to Section 13 or 15(d) of the Exchange Act (or exempt therefrom
pursuant to Rule 12h-5), to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations under Sections 3 and 4 hereof may result
in material irreparable injury to the Purchasers or the Holders or Affiliated
Market Makers 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 Purchasers or any Holder or Affiliated Market Makers
may obtain such relief as may be required to specifically enforce the Company's
obligations under Sections 3 and 4 hereof. The Company further agrees to waive,
to the extent permitted by law, the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities affected thereby,
and (ii) in the case of all other provisions hereof, the Company has obtained
the written consent of Holders of a majority of the outstanding principal
amount at maturity of Transfer Restricted Securities affected thereby
(excluding Transfer Restricted Securities held by the Company or its Affiliates
unless all Holders effected thereby are such Affiliates). Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that does not
affect directly or indirectly the rights of other Holders whose Transfer
Restricted Securities are not being tendered pursuant to such Exchange Offer,
may be given by the Holders of a majority of the outstanding principal amount
at maturity of Transfer Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders and Affiliated Market Makers
shall be third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Purchasers, on the other hand, and shall have
the right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture with a copy to the Registrar under the
applicable Indenture; and
16
(ii) if to the Purchasers
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
(iii) if to the Company:
Xxxxxxx Holdings (N.A.), Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
receipt acknowledged, 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.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Credit Suisse First
Boston LLC (in the form attached hereto as Exhibit A) and shall be addressed
to: Attention: Compliance Department, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without limitation, and without the need for an express assignment,
subsequent Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire
17
Transfer Restricted Securities in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions 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.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Compliance with Form S-3. The Company agrees for the benefit of any
Affiliated Market Makers that for so long as any of the Transfer Restricted
Securities remain outstanding, if at any time sales by the Affiliated Market
Makers of the Transfer Restricted Securities will satisfy clauses 1 or 3 of the
"Transaction Requirements" specified in Form S-3 (or any comparable provision
of any successor form to Form S-3), the Company will use its reasonable best
efforts to comply with, and maintain its compliance with, the "Registrant
Requirements" of Form S-3 (or any comparable provision of any successor form to
Form S-3).
[Signature Pages Follow]
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXX HOLDINGS (N.A.), INC.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President and
Chief Financial Officer
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Marc Warm
-----------------------------------
Name: Marc Warm
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER REGISTRATION STATEMENT
To: Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Compliance Department
Fax: (000) 000-0000
From: Xxxxxxx Holdings (N.A.), Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
14 3/4% Senior Discount Notes due 2014
Date: __________, 200_
For your information only (NO ACTION REQUIRED):
Today, ___________, 200_, we filed [an Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission.
