REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
This REGISTRATION RIGHTS AGREEMENT dated August 3, 2010 (the “Agreement”) is entered into by
and among Tenneco Inc., a Delaware corporation (the “Company”), the guarantors listed in Schedule 1
hereto (the “Guarantors”), and the several initial purchasers listed in Schedule 2 hereto (the
“Initial Purchasers”), for whom Deutsche Bank Securities Inc. is acting as representative.
The Company, the Guarantors and the Initial Purchasers are parties to the Purchase Agreement
dated July 29, 2010 (the “Purchase Agreement”), which provides for the sale by the Company to the
Initial Purchasers of $225 million aggregate principal amount of the Company’s 73/4% Senior Notes due
2018 (the “Securities”), which will be guaranteed by each of the Guarantors. As an inducement to
the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantors have
agreed to provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.
“Closing Date” shall mean the Closing Date as defined in the Purchase Agreement.
“Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange Act” shall mean the Securities Exchange Act of 1934 and the rules and regulations
thereunder, as amended from time to time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean the exchange offer by the Company and the Guarantors of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on
Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to
such registration statement, in each case including the Prospectus contained therein, all exhibits
thereto and any document incorporated by reference therein.
“Exchange Securities” shall mean senior notes issued by the Company and guaranteed by the
Guarantors under the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities
in exchange for Registrable Securities pursuant to the Exchange Offer.
“Filing Date” shall mean with respect to the Shelf Registration Statement required to be filed
pursuant to Section 2(b)(iii), the 60th day after the delivery of a notice pursuant to Section
2(b)(iii).
“Guarantors” shall have the meaning set forth in the preamble and shall also include any
Guarantor’s successors.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect transferees who become
owners of Registrable Securities under the Indenture; provided that for purposes of Sections 4 and
5 of this Agreement, the term “Holders” shall include Participating Broker-Dealers.
“Indenture” shall mean the Indenture relating to the Securities dated as of August 3, 2010
among the Company, the Guarantors and the Trustee, and as the same may be further amended, modified
or supplemented from time to time in accordance with the terms thereof.
“Initial Purchasers” shall have the meaning set forth in the preamble.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Company or any of its affiliates shall not be counted in determining
whether such consent or approval was given by the Holders of such required percentage or amount.
“Participating Broker-Dealers” shall have the meaning set forth in Section 2 hereof.
“Person” shall mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to such prospectus, and in each case including any document incorporated
by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided that any Security shall cease to
be a Registrable Security (i) when a Registration Statement with respect to such Security has
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been
declared effective under the Securities Act and such Security has been exchanged or disposed of pursuant to such Registration Statement or (ii) when such Security ceases to be
outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including, without limitation,
(i) all SEC, stock exchange or National Association of Securities Dealers, Inc. registration and
filing fees, (ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws in the United States of America (including reasonable fees and
disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification
in the United States of America of any Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or supplements thereto,
any underwriting agreements, securities sales agreements or other similar agreements and any other
documents relating to the performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for the Company and the Guarantors and, in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Holders
(which counsel shall be selected by the Majority Holders and which counsel may also be counsel for
the Initial Purchasers), (viii) the fees and disbursements of the independent public accountants of
the Company and the Guarantors, including the expenses of any special audits or “comfort” letters
required by or incident to the performance of and compliance with this Agreement, but excluding
fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a Holder and (ix) in the case of
an Exchange Offer, the reasonable fees and disbursements of counsel for the Initial Purchasers.
“Registration Statement” shall mean any registration statement of the Company and the
Guarantors filed with the SEC under the Securities Act that covers any of the Exchange Securities
or Registrable Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any document incorporated by
reference therein.
“SEC” shall mean the Securities and Exchange Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company and
the Guarantors filed with the SEC under the Securities Act that covers all the Registrable
Securities (but no other securities unless approved by the Holders whose Registrable Securities
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are to be covered by such Shelf Registration Statement) on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto and any document
incorporated by reference therein.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to
time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3 hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.
2. Registration Under the Securities Act.
(a) To the extent not prohibited by any applicable law or applicable interpretations of the
Staff of the SEC, the Company and the Guarantors shall use their commercially reasonable efforts to
(i) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to
exchange all the Registrable Securities for Exchange Securities and (ii) have such Registration
Statement remain effective until 180 days after the closing of the Exchange Offer. The Company and
the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use their commercially reasonable efforts to
complete the Exchange Offer not later than 60 days after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder
stating, in addition to such other disclosures as are required by applicable law,
| (i) | that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange; | |
| (ii) | the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Dates”); | |
| (iii) | that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement; | |
| (iv) | that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address (located in the Borough of Manhattan, The City of New York) and in the manner specified in the notice, prior to the close of business on the last Exchange Date; and |
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| (v) | that any Holder will be entitled to withdraw its election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address (located in the Borough of Manhattan, The City of New York) specified in the notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged. |
As a condition to participating in the Exchange Offer, a Holder will be required to represent
to the Company and the Guarantors that (i) any Exchange Securities to be received by it will be
acquired in the ordinary course of its business, (ii) at the time of commencement of the Exchange
Offer it has no arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Securities, (iii) it is not an
“affiliate” (within the meaning of Rule 405 under Securities Act) of the Company or any Guarantor
and (iv) if such Holder is a broker-dealer that will receive Exchange Securities for its own
account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer
as a result of market-making or other trading activities (a “Participating Broker-Dealer”), then
such Holder will deliver a Prospectus in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and the Guarantors shall
| (i) | accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and | |
| (ii) | deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities surrendered by such Holder provided that, except as may be otherwise required by the Indenture, in the case of any Registrable Securities held in global form by a depositary, authentication and delivery to such depositary of one or more Exchange Securities in global form in an equivalent principal amount thereto for the account of such Holders in accordance with the Indenture shall satisfy such authentication and delivery requirement. |
The Company and the Guarantors shall use their commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in connection with the
Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer does not violate any applicable law or applicable interpretations of the Staff of
the SEC and (ii) no action or proceeding shall have been instituted or threatened in any court or
by any governmental agency with respect to the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be completed as soon as
practicable after the last Exchange Date because it would violate any applicable law or applicable
interpretation of the Staff of the SEC, (ii) the Exchange Offer is not for any other reason
completed by the 210th day after the Closing Date, or (iii) if any Initial Purchaser
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holds any Securities acquired by it that have, or that are reasonably likely to be determined to have, the
status of an unsold allotment in an initial distribution, and any such Initial
Purchaser so requests in writing on or prior to the 60th day after the consummation of the
Exchange Offer, the Company and the Guarantors shall use commercially reasonable efforts to cause
to be filed as soon as practicable after such determination, date or request, as the case may be, a
Shelf Registration Statement providing for the sale of all the Registrable Securities by the
Holders (or, in the case of clause (iii), any requesting Initial Purchaser) thereof and to have
such Shelf Registration Statement declared effective by the SEC.
In the event that the Company and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding sentence, the Company and the Guarantors shall
use commercially reasonable efforts to file and have declared effective by the SEC both an Exchange
Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities
held by the Initial Purchasers after completion of the Exchange Offer. Notwithstanding the
foregoing, the Company and the Guarantors may delay filing a Shelf Registration Statement, and any
amendment thereto, and may withhold efforts to cause such Shelf Registration Statement, and any
such amendment thereto, to become effective for a period of up to 60 days, if (i) the Company
determines in good faith that such Shelf Registration Statement, and any such amendment thereto,
might interfere with or affect the negotiation or completion of any transaction that is being
contemplated by the Company (whether or not a final decision has been made to undertake such
transaction) at the time the right to delay is exercised or (ii) such Shelf Registration Statement,
and any such amendment thereto, would otherwise require premature disclosure of non-public
information that, in the Company’s judgment, exercised reasonably and in good faith, would have a
material adverse effect on or otherwise be detrimental to the Company; provided,
however, the Company may only exercise such right of delay or withholding of efforts other
than for purposes of avoiding its obligations under this Agreement; provided
further however, that the Company may not exercise such right of delay or
withholding of efforts more frequently than two times in any 12-month period and the aggregate
period of any such delays or withholdings shall not exceed 60 days in any such 12-month period.
The Company and the Guarantors agree to use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective until all of the Registrable Securities covered
thereby are eligible for resale under Rule 144(k) under the Securities Act upon the expiration of
the time period referred to in such rule or such earlier time when all the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement (the “Shelf Effectiveness Period”). The Company and the Guarantors further agree to
supplement or amend the Shelf Registration Statement and the related Prospectus if required by the
rules, regulations or instructions applicable to the registration form used by the Company and the
Guarantors for such Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a Holder of Registrable
Securities with respect to information relating to such Holder, and to use commercially reasonable
efforts to cause any such amendment to become effective and such Shelf Registration Statement and
Prospectus to become usable as soon as thereafter practicable. The Company and the Guarantors
agree to furnish to the Holders of Registrable Securities covered
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by any such Shelf Registration Statement copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) and Section 2(b) hereof. Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Exchange Offer Registration
Statement or Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC.
In the event that (i) either the Exchange Offer is not completed or a Shelf Registration
Statement required under Section (2)(b)(i) or (ii) hereof is not declared effective on or prior to
the 210th day after the Closing Date (the “Target Registration Date”) or (ii) a Shelf Registration
Statement required under Section 2(b)(iii) hereof is not declared effective on or prior to the 60th
day following the Filing Date (also a “Target Registration Date”), the interest rate on the
Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period
immediately following the applicable Target Registration Date and (ii) an additional 0.25% per
annum with respect to each subsequent 90-day period, in each case until the Exchange Offer is
completed or the Shelf Registration Statement, if required hereby, is declared effective by the SEC
or the Securities covered thereby are eligible for resale under Rule 144(k) under the Securities
Act upon the expiration of the time period referred to in such rule; provided
however, that in no event shall the aggregate amount of additional interest accruing under
this paragraph exceed in the aggregate 1.00% per annum.
If the Shelf Registration Statement has been declared effective and thereafter either ceases
to be effective or the Prospectus contained therein ceases to be usable at any time during the
Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 60
days (whether or not consecutive) in any 12-month period, then the interest rate on the Registrable
Securities will be increased by 1.00% per annum commencing on the 61st day in such 12-month period
and ending on such date that the Shelf Registration Statement has again been declared effective or
the Prospectus again becomes usable.
In no event shall the Company or Guarantors be obligated to pay additional interest under more
than one provisions of this Section 2(d) at any one time. Upon the effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement (in the case of clauses (i) and
(ii) of the second paragraph of this Section 2(d), as applicable) or the Shelf Registration
Statement which had ceased to remain effective (in the case of the penultimate paragraph of this
Section 2(d)), or the Securities become eligible for sale pursuant to Rule 144(k) under the
Securities Act upon the expiration of the time period referred to in such rule (in the case of the
second and third paragraphs of this Section 2(d)), additional interest on the Securities as a
result of such provisions (or the relevant subclause thereof), as the case may be, shall cease to
accrue.
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company or the
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Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company’s and the Guarantors’
obligations under Section 2(a) and Section 2(b) hereof.
(f) No Holder of Registrable Securities may include any of its Registrable Securities in any
Shelf Registration if such Holder shall have failed to furnish to the Company the information with
respect to such Holder and the proposed disposition specified in Items 507 and 508 (as applicable)
of Regulation S-K under the Securities Act and any other applicable rules, regulations or policies
of the SEC for use in connection with any Shelf Registration or Prospectus included therein. No
Holder of Registrable Securities shall be entitled to additional interest pursuant to Section 2(b)
if such Holder shall have failed to provide all such information. Each selling Holder as to which
a Shelf Registration is being effected agrees to furnish promptly to the Company additional
information to be disclosed so that the information previously furnished to the Company by such
Holder does not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statement therein not misleading.
3. Registration Procedures. In connection with their obligations pursuant to Section
2(a) and Section 2(b) hereof, the Company and the Guarantors shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on the appropriate form
under the Securities Act, which form (x) shall be selected by the Company and the
Guarantors, (y) shall, in the case of a Shelf Registration, be available for the sale of the
Registrable Securities to be included therein by the selling Holders thereof and (z) shall
comply as to form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; and use
commercially reasonable efforts to cause such Registration Statement to become effective and
remain effective for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective for
the applicable period in accordance with Section 2 hereof and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the
period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable
to transactions by brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities covered thereby, to counsel for the Initial Purchasers, to counsel for such
Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each preliminary
Prospectus,
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and any amendment or supplement thereto, as may be reasonably requested in order
to facilitate the sale or other disposition of the Registrable Securities covered
thereunder; and the Company and the Guarantors consent to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of the
selling Holders of Registrable Securities and any such Underwriters in connection with
the offering and sale of the Registrable Securities covered by and in the manner described
in such Prospectus or any amendment or supplement thereto in accordance with applicable law;
(d) use commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such jurisdictions in
the United States of America as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC; cooperate with the Holders in
connection with any filings required to be made with the National Association of Securities
Dealers, Inc.; and do any and all other acts and things that may be reasonably necessary or
advisable to enable each Holder to complete the disposition in each such jurisdiction of the
Registrable Securities owned by such Holder; provided that neither the Company nor any
Guarantor shall be required to (i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise be required to so
qualify, (ii) file any general consent to service of process in any such jurisdiction or
(iii) subject itself to taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable Securities
covered thereby, counsel for such Holders and counsel for the Initial Purchasers promptly
and, if requested by any such Holder or counsel, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective amendment thereto
has been filed and becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations and warranties of
the Company or any Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if the Company or any
Guarantor receives any notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding
for such purpose, (v) of the happening of any event during the period a Shelf Registration
Statement is effective that makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or that requires the making of any changes
in such Registration Statement or Prospectus in order to make the statements therein not
misleading and of the delay in filing a Shelf Registration Statement, or any amendment
thereto, or of the withholding of efforts to cause such Shelf Registration Statement, or any
such amendment thereto, to become
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effective, pursuant to the third sentence of Section 2(b)
and (vi) of any determination by the Company or any Guarantor that a post-effective
amendment to a Registration Statement would be appropriate; provided that, in the
case of clause (iv), (v) or (vi), with respect to any event, development or transaction that
would permit the Company to exercise its rights of delay or withholding of efforts under the
third sentence of Section 2(b), the
Company shall provide written notice that, in its good faith judgment, such an event,
development or transaction has occurred or is pending and that it is exercising its rights
of delay or withholding of efforts pursuant to the third sentence of Section 2(b) of this
Agreement; provided further that the Company shall not be required to
describe such event, development or transaction in the written notice provided.
(f) use their commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest possible moment and
provide immediate notice to each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities covered thereby, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without any documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities covered thereby to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any restrictive
legends and enable such Registrable Securities to be issued in such denominations and
registered in such names (consistent with the provisions of the Indenture) as the selling
Holders may reasonably request at least one Business Day prior to the closing of any sale of
Registrable Securities;
(i) subject to the third sentence of Section 2(b), in the case of a Shelf Registration,
upon the occurrence of any event contemplated by Section 3(e)(v) hereof, use their
commercially reasonable efforts to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company and the Guarantors shall notify the Holders of
Registrable Securities covered by such Shelf Registration to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and such Holders hereby
agree to suspend use of the Prospectus until the Company and the Guarantors have amended or
supplemented the Prospectus to correct such misstatement or omission and expressly agree to
maintain the information contained in such notice confidential (except that such information
may be disclosed to their counsel) until it has been publicly disclosed by the Company;
provided that, with respect to any event, development or transaction that would
permit the Company and the Guarantors to exercise their rights of
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delay or withholding of efforts under the third sentence of Section 2(b), such
notice shall state that, in the Company’s good faith judgment, such an event, development or
transaction has occurred or is pending and that it is exercising its rights of delay or
withholding of efforts pursuant to the third sentence of Section 2(b) of this Agreement;
provided further that the Company shall not be required to describe such
event, development or transaction in such notice.
(j) a reasonable time prior to the filing of any Registration Statement, any
Prospectus, any amendment to a Registration Statement or amendment or supplement to a
Prospectus or of any document that is to be incorporated by reference into a Registration
Statement or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Securities covered thereby and their
counsel) and make such of the representatives of the Company and the Guarantors as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of such Registrable Securities or their counsel)
available for discussion of such document; and the Company and the Guarantors shall not, at
any time after initial filing of a Registration Statement, file any Prospectus, any
amendment of or supplement to a Registration Statement or a Prospectus, or any document that
is to be incorporated by reference into a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities covered thereby and their counsel) shall
not have previously been advised and furnished a copy or to which the Initial Purchasers or
their counsel (and, in the case of a Shelf Registration Statement, such Holders or their
counsel) shall reasonably object on a timely basis, except for any Registration Statement or
amendment thereto or related Prospectus or supplement thereto (a copy of which has been
previously furnished as provided in the preceding sentence) which counsel to the Company has
advised the Company in writing (with a copy to the objecting Initial Purchasers or Holders,
as the case may be) is required to be filed in order to comply with applicable law;
(k) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the
case may be, not later than the effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act in connection
with the registration of the Exchange Securities or Registrable Securities, as the case may
be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as
may be required for the Indenture to be so qualified in accordance with the terms of the
Trust Indenture Act; and execute, and use their reasonable best efforts to cause the Trustee
to execute, all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so qualified in a
timely manner;
(m) in the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities covered thereby (an
“Inspector”), any underwriter participating in any disposition pursuant to such Shelf
Registration
-11-
Statement, and attorneys and accountants designated by the Holders, at
reasonable times
and in a reasonable manner, all pertinent financial and other records, documents and
properties of the Company and the Guarantors, and cause the respective officers, directors
and employees of the Company and the Guarantors to supply all information reasonably
requested by any such Inspector, Underwriter, attorney or accountant in connection with a
Shelf Registration Statement; provided that each such representative, Underwriter, attorney
or accountant shall agree in writing that it will keep such information confidential and
that it will not disclose any of the information that the Company determines, in good faith,
to be confidential and notifies them is confidential unless (i) the disclosure of such
information is required by law (including as necessary to avoid or correct a material
misstatement or material omission in such Registration Statement or Prospectus), (ii) the
release of such information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) such information has been made generally available to the
public other than by any of such persons or their affiliates; provided,
however, that each such representative, underwriter, attorney or accountant shall
use commercially reasonable efforts to give prior notice as soon as practicable to the
Company of the potential disclosure of any information by such person pursuant to clause (i)
or (ii) of this sentence in order to permit the Company to obtain a protective order (or
waive the provisions of this paragraph (m));
(n) if reasonably requested by any Holder of Registrable Securities covered by a
Registration Statement, promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder reasonably requests to
be included therein and make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received notification of the matters to
be incorporated in such filing; and
(o) in the case of a Shelf Registration, enter into such customary agreements and take
all such other actions in connection therewith (including those requested by the Holders of
a majority in principal amount of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities including, but not
limited to, an Underwritten Offering and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Company and the Guarantors
(which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory
to the Holders and such Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Securities, covering the matters customarily covered
in opinions requested in underwritten offerings, (iii) obtain “comfort” letters from the
independent certified public accountants of the Company and the Guarantors (and, if
necessary, any other certified public accountant of any subsidiary of the Company or any
Guarantor, or of any business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included
-12-
in the Registration
Statement) addressed to each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in “comfort” letters in connection with underwritten offerings and
(iv) deliver such documents and certificates as may be reasonably requested by the Holders
of a majority in principal amount of the Registrable Securities being sold thereunder or the
Underwriters, and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company and the Guarantors
made pursuant to clause (i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement.
In the case of a Shelf Registration Statement, each Holder of Registrable Securities agrees
that, upon receipt of any notice from the Company and the Guarantors of the happening of any event
of the kind described in Section 3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration Statement until such
Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section
3(i) hereof and, if so directed by the Company and the Guarantors, such Holder will deliver to the
Company and the Guarantors all copies in its possession, other than permanent file copies then in
such Holder’s possession, of the Prospectus covering such Registrable Securities that is current at
the time of receipt of such notice.
If the Company and the Guarantors shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company and the Guarantors shall
extend the period during which the Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days during the period from and including the date of the giving of
such notice to and including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions. The Company and the
Guarantors may give any such notice only twice during any 365-day period and any such suspensions
shall not exceed 30 days for each suspension and there shall not be more than two suspensions in
effect during any 365-day period.
The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to
do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers (the “Underwriters”)
that will administer the offering will be selected by the Majority Holders of the Registrable
Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities that were acquired
by a Participating Broker-Dealer may be deemed to be an “underwriter” within the meaning of the
Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating Broker-Dealers
-13-
may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for their own accounts, so long as
the Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement, as would otherwise be contemplated by Section 3(i), for a period of
up to 180 days after the last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement), if reasonably requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above. The Company and the Guarantors further agree
that Participating Broker-Dealers shall be authorized to deliver such Prospectus during such period
in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company, any Guarantor or any Holder
with respect to any request that they may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and each Guarantor, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each person, if any, who controls any Initial Purchaser or any Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation, reasonable legal
fees and other expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, except (i) insofar as
such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity with
any information relating to any Initial Purchaser or any Holder furnished to the Company in writing
by any Initial Purchaser or any selling Holder expressly for use therein or (ii) that with respect
to any such untrue statement in or omission from or alleged untrue statement in or omission from
any preliminary Prospectus, the indemnity provided in this Section 5(a) shall not inure to the
benefit of any Holder from whom the person asserting any such loss, claim, damage or liability
received Registrable Securities or Exchange Securities to the extent that such loss, claim, damage
or liability results from the fact that (A) such Holder was required under the Securities Act to
deliver a copy of the final Prospectus to such person at or prior to the written confirmation of
the sale of Registrable Securities or Exchange Securities to such person, (B) a copy of the final
Prospectus was not so sent or given to such person at or prior to the written confirmation of the
sale of such Registrable Securities or Exchange Securities to such person
-14-
and (C) such untrue
statement in or omission from or alleged untrue statement in or omission from the preliminary
Prospectus was corrected in the final Prospectus unless, in either case, such failure to deliver
the final Prospectus was a result of non-compliance by the Company or any of
the Guarantors with Section 2(b) or 3 hereof. In connection with any Underwritten Offering
permitted by Section 3, the Company and the Guarantors, jointly and severally, will also indemnify
the Underwriters, if any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their respective affiliates and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested in connection with
any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Guarantors, the Initial Purchasers and the other selling Holders, their respective affiliates,
the directors of the Company and the Guarantors, each officer of the Company and the Guarantors who
signed the Registration Statement and each Person, if any, who controls the Company, the
Guarantors, any Initial Purchaser and any other selling Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth
in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any Registration Statement
or any Prospectus.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying
Person”) in writing; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 5 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 Person
shall not relieve it from any liability that it may have to an Indemnified Person otherwise than
under this Section 5. If any such proceeding shall be brought or asserted against an Indemnified
Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5 that the Indemnifying
Person may designate in such proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the reasonable fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those available to the
Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and representation
-15-
of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates,
directors and officers and any control Persons of such Initial Purchaser shall be designated in
writing by Deutsche Bank Securities Inc., (y) for any other Holders, their affiliates, directors
and officers and any control Persons of such Holders shall be designated in writing by the Majority
Holders and (z) in all other cases shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment to the extent provided herein and therein.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for reasonable fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 60 days after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by
the Holders from receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, 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) but also the relative fault of the Company and the Guarantors on the one hand and the
Holders on the other in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the Holders on the other 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 and the Guarantors or by the Holders and the parties’ relative
-16-
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
(e) The Company, the Guarantors and the Holders 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 Holders were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 5, in no event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchasers or any Holder, their respective
affiliates or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of the
Company or the Guarantors, their respective affiliates or the officers or directors of or any
Person controlling the Company or the Guarantors, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the Guarantors, jointly and severally,
represent, warrant and agree that (i) 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 any other
outstanding securities issued or guaranteed by the Company or any Guarantor under any other
agreement and (ii) neither the Company nor any Guarantor has entered into, or on or after the date
of this Agreement will enter into, any agreement that is inconsistent with the rights granted to
the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions
hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company and the Guarantors have obtained the
written consent of Holders of at least a majority in aggregate principal
-17-
amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or consent; provided that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in writing by such
Holder. Any amendments, modifications, supplements, waivers or consents pursuant to this Section
6(b) shall be by a writing executed by each of the parties hereto.
(c) 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
6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in
the Purchase Agreement; (ii) if to the Company and the Guarantors, initially at the Company’s
address set forth in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at
their respective addresses as provided in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this Section 6(c). 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 answered back, if telexed; 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.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors, assigns and transferees of each of the parties, including, without limitation and
without the need for an express assignment, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable 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 and
such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their
capacity as Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of,
any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company and the Guarantors shall not, and shall
use their reasonable best efforts to cause their affiliates (as defined in Rule 405 under the
Securities Act) not to, purchase and then resell or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Company and the Guarantors, on the one hand,
-18-
and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its rights
or the rights of other Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only, are not a
part of this Agreement 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) Miscellaneous. This Agreement contains the entire agreement between the parties relating
to the subject matter hereof and supersedes all oral statements and prior writings with respect
thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the
remainder of the terms, provisions, covenants and restrictions contained herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated. The Company, the
Guarantors and the Initial Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the economic effect of which comes
as close as possible to that of the invalid, void or unenforceable provisions.
-19-
Exhibit 4.2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| TENNECO INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President, Treasurer and Tax | |||
| TENNECO AUTOMOTIVE OPERATING COMPANY INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President, Treasurer and Tax | |||
| THE PULLMAN COMPANY |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President, Treasurer and Tax | |||
| CLEVITE INDUSTRIES INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President, Treasurer and Tax | |||
| TENNECO GLOBAL HOLDINGS INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President, Treasurer and Tax | |||
| TMC TEXAS INC. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President, Treasurer and Tax | |||
| TENNECO INTERNATIONAL HOLDING CORP. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President, Treasurer and Tax | |||
| Confirmed and accepted as of the date first written above: DEUTSCHE BANK SECURITIES INC. For itself and on behalf of the several Initial Purchasers |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director | |||
Schedule 1
List of Subsidiary Guarantors
Tenneco Automotive Operating Company Inc.
|
Delaware | |
The Pullman Company
|
Delaware | |
Clevite Industries Inc.
|
Delaware | |
Tenneco Global Holdings Inc.
|
Delaware | |
TMC Texas Inc.
|
Delaware | |
Tenneco International Holding Corp.
|
Delaware |
Schedule 2
Initial Purchasers
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
RBS Securities Inc.
Xxxxx Fargo Securities, LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Fifth Third Securities, Inc.
Commerz Markets LLC
BNY Mellon Capital Markets, LLC
Scotia Capital (USA) Inc.
U.S. Bancorp Investments, Inc.
PNC Capital Markets LLC
Citigroup Global Markets Inc.
RBS Securities Inc.
Xxxxx Fargo Securities, LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Fifth Third Securities, Inc.
Commerz Markets LLC
BNY Mellon Capital Markets, LLC
Scotia Capital (USA) Inc.
U.S. Bancorp Investments, Inc.
PNC Capital Markets LLC
