EXHIBIT 4.18
EXECUTION COPY
X.X. XXXXXX, INC.
$250,000,000 8.5% SENIOR NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
April 11, 2002
Xxxxxxx Xxxxx Barney Inc.
Banc of America Securities LLC
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
as Representative of the Initial Purchasers
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxx, Inc., a corporation organized under the laws of
the state of Delaware (the "Company"), proposes to issue and sell to you (the
"Initial Purchasers") its 8.5% Senior Notes due 2012 (the "Notes") upon the
terms set forth in a purchase agreement dated as of April 4, 2002 (the "Purchase
Agreement") relating to the initial placement of the Notes (the "Initial
Placement"). The Notes are to be issued under an indenture dated as of April 11,
2002 (the "Base Indenture") and a supplemental indenture dated as of April 11,
2002 (the "Supplemental Indenture" and together with the Base Indenture, the
"Indenture") among the Company, the guarantors listed on the signature pages
hereto (the "Guarantors" and, together with the Company, the "Issuers") and
American Stock Transfer & Trust Company , as trustee (the "Trustee"). The Notes
will have the benefit of the guarantees (the "Guarantees" and, together with the
Notes, the "Securities") provided for in the Indenture. To induce the Initial
Purchasers to purchase the Securities pursuant to the Purchase Agreement and to
satisfy a condition of your obligations thereunder, the Issuers agree with you
for your benefit and the benefit of the holders from time to time of the
Securities and New Securities (as defined below) (including the Initial
Purchasers) (each a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
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"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, "control" of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise; and the terms "controlling" and "controlled"
shall have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the earlier of
(i) the 180 day period following the consummation of the Registered Exchange
Offer and (ii) the period following the consummation of the Registered Exchange
Offer and the date upon which all Exchanging Dealers have sold all New
Securities held by them; provided that the period referred to in clause (ii)
above shall be exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration
Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Issuers on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from any
Issuer or any Affiliate of any Issuer ).
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Guarantors" shall have the meaning set forth in the preamble
hereto.
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"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall have the meaning set forth in the preamble
hereto.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Issuers" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"New Securities" shall mean debt securities of the Issuers
identical in all material respects to the Securities (except that the liquidated
damages provisions and the transfer restrictions shall be modified or
eliminated, as appropriate) and to be issued under the Indenture or the New
Securities Indenture.
"New Securities Indenture" shall mean an indenture among the
Issuers and the New Securities Trustee, identical in all material respects to
the Indenture (except that liquidated damages provisions will be modified or
eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchasers, as trustee with respect to
the New Securities under the New Securities Indenture.
"Notes" shall have the meaning set forth in the preamble
hereto.
"Offering Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Person" shall mean an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a government
agency or a political subdivision thereof.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
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under the Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Securities or the New
Securities covered by such Registration Statement, and all amendments and
supplements thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities on the terms customary for such an offer.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth
in Section 3(c) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuers pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or New Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall have the meaning set forth in the preamble
hereto.
"underwriter" shall mean any underwriter of Securities or New
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare
and use their reasonable best efforts to file with the Commission, not later
than 90 days following the date of the original issuance of the Securities (or
if such 90th day is not a Business Day, the next succeeding Business Day), the
Exchange Offer Registration Statement with respect to the
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Registered Exchange Offer. The Issuers shall use their reasonable best efforts
to cause the Exchange Offer Registration Statement to become effective under the
Act within 150 days of the date of the original issuance of the Securities (or
if such 150th day is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for New Securities (assuming that such Holder is
not an Affiliate of any Issuers, acquires the New Securities in the ordinary
course of such Holder's business, has no arrangements with any Person to
participate in the distribution of the New Securities and is not prohibited by
any law or policy of the Commission from participating in the Registered
Exchange Offer) to trade such New Securities from and after their receipt
without any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Issuers shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not
less than 20 Business Days and not more than 30 Business Days after the
date notice thereof is mailed to the Holders (or, in each case, longer
if required by applicable law);
(iii) if required by any Exchanging Dealer, use their
reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and
amended as required under the Act, in order to permit the Prospectus
contained in such Exchange Offer Registration Statement to be lawfully
delivered by such Exchanging Dealer during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan
in New York City, which may be the Trustee, the New Securities Trustee
or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the Commission
(A) stating that the Issuers are
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conducting the Registered Exchange Offer in reliance on the position of
the Commission in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991);
and (B) including a representation that the Issuers have not entered
into any arrangement or understanding with any Person to distribute the
New Securities to be received in the Registered Exchange Offer and
that, to the best of the Issuers' information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
New Securities; and
(vii) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Issuers shall:
(i) accept for exchange all Securities tendered and
not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 4(s) all Securities so accepted for exchange;
and
(iii) cause the New Securities Trustee promptly to
authenticate and deliver to each Holder of Securities a principal
amount of New Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(e) Each Holder is hereby deemed to acknowledge and agree that
any Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from any Issuer or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will
be acquired in the ordinary course of business;
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(ii) such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the
Securities or the New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Issuers shall issue and deliver to such
Initial Purchaser or the Person purchasing New Securities registered under a
Shelf Registration Statement as contemplated by Section 3 hereof from such
Initial Purchaser, in exchange for such Securities, a like principal amount of
New Securities. The Issuers shall use their reasonable best efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such New Securities as
for New Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is not consummated within 180
days of the date hereof; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the
Registered Exchange Offer and that are held by it following consummation of the
Registered Exchange Offer; (iv) any Holder (other than an Initial Purchaser)
notifies the Company prior to the 20th day following consummation of the
Registered Exchange Offer that it is not eligible to participate in the
Registered Exchange Offer because of applicable law or the applicable
interpretations of the Commission's staff; or (v) in the case of any Initial
Purchaser that participates in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, such Initial Purchaser does not
receive freely tradable New Securities in exchange for Securities constituting
any portion of an unsold allotment (it being understood that (x) the requirement
that an Initial Purchaser deliver a Prospectus containing the information
required by Item 507 or 508 of Regulation S-K under the Act in connection with
sales of New Securities acquired in exchange for such Securities shall not
result in such New Securities being not "freely tradable"; and (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of New Securities acquired in the Registered Exchange Offer in exchange
for Securities acquired as a result of market-making activities or other trading
activities shall not result in such New Securities being not "freely tradable"),
the Issuers shall effect a Shelf Registration Statement in accordance with
subsection (b) below; provided, however that the Issuers shall only be required
to register Securities under the Shelf Registration Statement for persons who
have identified themselves to the Issuers as Holders thereof. If in the judgment
of the Company's Board of Directors exercised reasonably and in good faith, the
use of the Shelf
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Registration Statement and the disclosure required to be made therein would
materially interfere with a valid business purpose of the Issuers, the Company
may deliver a notice to such effect to the Holders, and upon receipt of such
notice, the Holders shall cease distribution of the Securities or New Securities
under a Shelf Registration Statement for the period of time (the "Shelf Delay
Period") set forth in such notice (which shall not be greater than 60 days).
Notwithstanding the foregoing, there shall not be more than two Shelf Delay
Periods declared in any one calendar year; provided that such Shelf Delay
Periods shall not exceed 90 days in the aggregate in any one calendar year. The
Company shall use its reasonable best efforts to minimize the length of any
Shelf Delay Period and shall promptly notify the Holders upon the termination
thereof.
(b) The Issuers shall as promptly as practicable (but in no
event more than 45 days after so required or requested pursuant to this Section
3) file with the Commission and thereafter shall use their reasonable best
efforts to cause to be declared effective under the Act within 135 days after so
required or requested pursuant to this Section 3 a Shelf Registration Statement
relating to the offer and sale of the Securities or the New Securities, as
applicable, by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder; and provided,
further, that with respect to New Securities received by an Initial Purchaser in
exchange for Securities constituting any portion of an unsold allotment, the
Issuers may, if permitted by interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(c) The Issuers shall use their reasonable best efforts to
keep the Shelf Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from the date the
Shelf Registration Statement is declared effective by the Commission or such
shorter period that will terminate when all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement (i) have been sold
pursuant to the Shelf Registration Statement or (ii) are distributed to the
public pursuant to Rule 144 under the Act or are salable pursuant to Rule 144(k)
under the Act (in any such case, such period being called the "Shelf
Registration Period"). The Issuers shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if any of them voluntarily takes any action that
would result in Holders of
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Securities or New Securities covered thereby not being able to offer and sell
such Securities or New Securities during that period, unless (A) such action is
required by applicable law or (B) such action is taken by such Issuer in good
faith and for valid business reasons (not including avoidance of such Issuer's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Issuers promptly thereafter comply with the requirements of Section
4(k) hereof, if applicable.
4. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to you, not less than five Business Days
prior to the filing thereof with the Commission, a copy of the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
the case may be, and each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein (including all
documents incorporated by reference therein after the initial filing)
and shall use their reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose;
(ii) include the information set forth in Annex A
hereto on the facing page of the Exchange Offer Registration Statement,
in Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange Offer, in
Annex C hereto in the underwriting or plan of distribution section of
the Prospectus contained in the Exchange Offer Registration Statement,
and in Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer;
(iii) if reasonably requested by an Initial
Purchaser, include the information required by Item 507 or 508 of
Regulation S-K, as applicable, in the Prospectus contained in the
Exchange Offer Registration Statement; and
(iv) in the case of the Shelf Registration Statement,
include the names of the Holders that notify the Company of their
intention to sell Securities or New Securities pursuant to the Shelf
Registration Statement as selling security holders.
(b) The Issuers shall cause such Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the
effective date of such Registration Statement or such amendment or supplement:
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(i) to comply in all material respects with the Act
and the rules and regulations of the Commission; and
(ii) (other than with respect to information included
therein in reliance upon or in conformity with information furnished to
the Company by or on behalf of any Holder specifically for use therein)
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(c) The Issuers shall advise you, the Holders of Securities or
New Securities covered by any Shelf Registration Statement and any Exchanging
Dealer under any Exchange Offer Registration Statement that has provided in
writing to the Issuers a telephone or facsimile number and address for notices,
and, if requested by you or any such Holder or Exchanging Dealer, shall confirm
such advice in writing (which notice pursuant to clauses (ii)-(v) of this
Section 4(c) shall be accompanied by an instruction to suspend the use of the
Prospectus until the Issuers shall have remedied the basis for such suspension):
(i) when a Registration Statement or any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the Prospectus
or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by any Issuer of any notification
with respect to the suspension of the qualification of the Securities
or New Securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
(d) The Issuers shall use their reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities included therein
for sale in any jurisdiction at the earliest possible time.
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(e) The Issuers shall furnish to each Holder of Securities or
New Securities covered by any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by reference,
and, if the Holder so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period,
deliver to each Holder of Securities or New Securities covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuers consent, subject to the provisions of this Agreement, to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Securities or New Securities in connection with the offering
and sale of the Securities or New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Issuers shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other Person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such Person may
reasonably request. The Issuers consent, subject to the provisions of this
Agreement, to the use of the Prospectus or any amendment or supplement thereto
by any Initial Purchaser, any Exchanging Dealer and any such other Person that
may be required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange
Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities or New Securities pursuant to any Registration Statement,
the Issuers shall use their reasonable best efforts to arrange, if necessary,
for the qualification of the Securities or the New Securities for sale under the
laws of such U.S. jurisdictions as any Holder shall reasonably request in
writing and will maintain such qualification in effect so long as reasonably
required; provided that in no event shall any Issuer be obligated to qualify to
do business in any jurisdiction where it is not then so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the Initial Placement, the Registered Exchange
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Offer or any offering pursuant to a Shelf Registration Statement, or taxation in
any such jurisdiction where it is not then so subject.
(j) The Issuers shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing New Securities
or Securities to be issued or sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Issuers shall (unless they shall have
invoked a Shelf Delay Period with respect to such occurrence) promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered, the Prospectus will not include 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. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for in
Section 2 and the Shelf Registration Statement provided for in Section 3(b)
shall each be extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 4(c) to and including the
date when the Initial Purchasers, the Holders and any known Exchanging Dealer
shall have received such amended or supplemented Prospectus pursuant to this
Section 4.
(l) Not later than the effective date of any Registration
Statement, the Issuers shall provide a CUSIP number for the Securities or the
New Securities, as the case may be, registered under such Registration Statement
and provide the Trustee with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Issuers shall comply with all applicable rules and
regulations of the Commission and shall make generally available to their
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(n) The Issuers shall cause the Indenture or the New
Securities Indenture, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Issuers may require each Holder of Securities or New
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Issuers such information regarding the Holder and the distribution of such
Securities or New Securities as the Issuers may from time to time reasonably
require for inclusion in such Registration Statement. The Issuers may exclude
from such Shelf Registration Statement the Securities or New Securities
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of any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the
Issuers shall enter into such agreements and take all other appropriate actions
(including if requested an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the Securities or
New Securities and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6 (or such other
provisions and procedures acceptable to the Majority Holders and the Managing
Underwriters, if any, with respect to all parties to be indemnified pursuant to
Section 6).
(q) In the case of any Shelf Registration Statement, the
Issuers shall:
(i) cause the officers, directors and employees of
any Issuer to (x) supply all relevant information (including all
financial and other records, pertinent corporate documents of the
Issuers and their subsidiaries) and (y) make available all relevant
properties, reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is
designated in writing by any Issuer, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by
the Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally or through a third party without an accompanying obligation
of confidentiality;
(ii) make such representations and warranties to the
Holders of Securities or New Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and
covering the matters set forth in the Purchase Agreement;
(iii) use their reasonable best efforts to obtain
opinions of counsel to the Issuers and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each
selling Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders
and underwriters;
(iv) use their reasonable best efforts to obtain
"cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any Issuer or
-14-
any subsidiary of any Issuer or of any business acquired by any Issuer
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten
offerings; and
(v) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section 4(q)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement,
the Issuers shall, upon reasonable request by the Initial Purchasers:
(i) cause the officers, directors and employees of
any Issuer to supply all relevant information (including all financial
and other records, pertinent corporate documents and properties of the
Issuers and their subsidiaries) reasonably requested by any Initial
Purchaser or any such attorney, accountant or agent retained by any
Initial Purchaser in connection with any such Registration Statement as
is customary for similar due diligence examinations; provided, however,
that any information that is designated in writing by any Issuer, in
good faith, as confidential at the time of delivery of such information
shall be kept confidential by such Initial Purchaser or any such
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(ii) make such representations and warranties to the
Initial Purchasers, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and
covering the matters set forth in the Purchase Agreement;
(iii) use their reasonable best efforts to obtain
opinions of counsel to the Issuers and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Initial Purchasers and their counsel), addressed to
the Initial Purchasers, covering such matters as are customarily
covered in
-15-
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by the Initial Purchasers or their counsel;
(iv) use their reasonable best efforts to obtain
"cold comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any Issuer or any
subsidiary of any Issuer or of any business acquired by any Issuer for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to the Initial
Purchasers, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings, or if requested by the Initial
Purchasers or their counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards No.
35, covering matters requested by the Initial Purchasers or their
counsel; and
(v) deliver such documents and certificates as may be
reasonably requested by the Initial Purchasers or their counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 4(r) shall be performed at the close of the Registered Exchange Offer
and the effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Issuers (or to such other Person as
directed by the Issuers) in exchange for the New Securities, the Issuers shall
xxxx, or caused to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the New Securities. In no event
shall the Securities be marked as paid or otherwise satisfied.
(t) The Issuers will use their reasonable best efforts (i) if
the Securities have been rated prior to the initial sale of such Securities, to
confirm such ratings will apply to the Securities or the New Securities, as the
case may be, covered by a Registration Statement; or (ii) if the Securities were
not previously rated, to cause the Securities or New Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect to
the related Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or New Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules of the National Association of Securities Dealers, Inc.)
thereof, whether as a Holder or as an underwriter, a placement
-16-
or sales agent or a broker or dealer in respect thereof, or otherwise, the
Issuers will assist such Broker-Dealer in complying with the requirements of
such Conduct Rules, including without limitations by:
(1) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Conduct Rules),
at the cost of such Broker-Dealer, to participate in the preparation of
the Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering
or is made through a placement or sales agent, to recommend the yield
of such Securities or New Securities;
(2) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(3) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Conduct Rules.
(v) Each Holder agrees that, upon receipt of the notice
referred to in paragraphs (iii) through (v) of Section 4(c) hereof (in each
case, a "Suspension Notice"), such Holder will forthwith discontinue disposition
of Securities or New Securities, as applicable, pursuant to the applicable
Registration Statement until (i) such Holder is advised in writing by the
Issuers that the use of the Prospectus included in such Registration Statement
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in such Prospectus or (ii) such
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 4(k) hereof (in each case, the "Recommencement Date").
Each Holder receiving a Suspension Notice hereby agrees that it will either (i)
discard or destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Issuers with more
recently dated Prospectuses or (ii) deliver to the Issuers all copies, other
than permanent file copies, then in such Holder's possession of the Prospectus
covering such Securities or New Securities that was current at the time of
receipt of the Suspension Notice.
(w) The Issuers shall use their reasonable best efforts to
take all other steps necessary to effect the registration of the Securities or
the New Securities, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
-17-
disbursements of one firm or counsel designated to act as counsel for the
Initial Purchasers in connection therewith.
6. Indemnification and Contribution. (a) Each of the Issuers
jointly and severally agrees to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each Person
who controls any such Holder within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein, in the light of the
circumstances under which they were made, or necessary to make the statements
therein not misleading, and jointly and severally agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Issuers will
not be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Issuers by or on
behalf of any 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 Prospectus relating to a Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the Person asserting any such
losses, claims, damages or liabilities purchased the Securities or New
Securities concerned, to the extent that a Prospectus relating to such
Securities or New Securities was required to be delivered by such Holder under
the Act in connection with such purchase and any such loss, claim, damage or
liability of such Holder 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 or New Securities to such Person, a copy of the final Prospectus if
the Issuers had previously furnished copies thereof to such Holder and if the
final Prospectus would have cured the defect giving rise to such loss, claim or
damage. This indemnity agreement will be in addition to any liability which the
Issuers may otherwise have.
Each of the Issuers also jointly and severally agrees to
indemnify or contribute as provided in Section 6(d) to Losses of each
underwriter of Securities or New Securities, as
-18-
the case may be, registered under a Shelf Registration Statement, their
directors, officers, employees or agents and each Person who controls such
underwriter on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of Securities or New Securities covered by a
Registration Statement (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 4(h), each Exchanging Dealer)
severally and not jointly agrees to indemnify and hold harmless the Issuers,
each of their respective directors, each of their respective officers who signs
such Registration Statement and each Person who controls any Issuer within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 or notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified
-19-
party within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or New Security be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth on the cover page of the
Offering Memorandum, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the securities
purchased by such underwriter under the Registration Statement which resulted in
such Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. The benefits received by the Issuers shall be
deemed to be the total net proceeds from the Initial Placement (before deducting
expenses) received by the Company. The benefits received by the Initial
Purchasers shall be deemed to be the issue price discount (equal to the
principal amount of the Securities less their issue price as set forth on the
cover page of the Offering Memorandum). The benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or New
Securities, as applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one
-20-
hand, or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The parties agree that it would
not be just and equitable if contribution were determined by pro rata allocation
(even if the Holders were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), 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 Section, each
Person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each Person who
controls any Issuer within the meaning of either the Act or the Exchange Act,
each officer of any Issuer who shall have signed the Registration Statement and
each director of any Issuer shall have the same rights to contribution as the
Issuers, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Issuers or any of the officers, directors or controlling Persons referred
to in this Section 6, and will survive the sale by a Holder of securities
covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or
New Securities, as the case may be, covered by any Shelf Registration Statement
are to be sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders and approved by the Company, which approval
shall not be unreasonably withheld.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. No Inconsistent Agreements. No Issuer has, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the
-21-
Issuers have obtained the written consent of the Majority Holders (or, after the
consummation of any Registered Exchange Offer in accordance with Section 2
hereof, the Holders of a majority of the aggregate principal amount of New
Securities); provided that, with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Issuers
shall obtain the written consent of each such Initial Purchaser against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or New Securities,
as the case may be, are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders, may be given
by the Majority Holders, determined on the basis of Securities or New
Securities, as the case may be, being sold rather than registered under such
Registration Statement.
10. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Issuers in accordance with the provisions of this Section
10, which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to Xxxxxxx Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the address set forth in the
Purchase Agreement; and
(c) if to the Issuers, initially at the address of the Company
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received. The Initial Purchasers or the Issuers by notice
to the other parties may designate additional or different addresses for
subsequent notices or communications.
11. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and New Securities. The
Issuers hereby agree to extend the benefits of this Agreement to any Holder of
Securities or New Securities, and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
12. Counterparts. This Agreement may be in signed
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
-22-
13. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Issuers, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by any Issuer or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
between the Issuers and the Initial Purchasers.
Very truly yours,
X.X. XXXXXX, INC.
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
Executive Vice President, Treasurer and
Chief Financial Officer
Registration Rights Agreement S-1
GUARANTORS:
C. XXXXXXX XXXXXX BUILDERS, INC.
CHI CONSTRUCTION COMPANY
CHTEX OF TEXAS, INC.
CONTINENTAL HOMES, INC.
CONTINENTAL HOMES OF FLORIDA, INC.
CONTINENTAL RESIDENTIAL, INC.
X.X. XXXXXX, INC. - BIRMINGHAM
X.X. XXXXXX, INC. - CHICAGO
X.X. XXXXXX, INC. - DENVER
X.X. XXXXXX, INC. - XXXXX-XXXXX
X.X. XXXXXX, INC. - GREENSBORO
X.X. XXXXXX, INC. - JACKSONVILLE
X.X. XXXXXX, INC. - LOUISVILLE
X.X. XXXXXX, INC. - MINNESOTA
X.X. XXXXXX, INC. - NEW JERSEY
X.X. XXXXXX, INC. - PORTLAND
X.X. XXXXXX, INC. - SACRAMENTO
X.X. XXXXXX, INC. - TORREY
X.X. XXXXXX LOS ANGELES HOLDING COMPANY, INC.
X.X. XXXXXX SAN DIEGO HOLDING COMPANY, INC.
DRH CAMBRIDGE HOMES, INC.
DRH CONSTRUCTION, INC.
DRH REGREM II, INC.
DRH REGREM III, INC.
DRH REGREM IV, INC.
DRH REGREM V, INC.
DRH SOUTHWEST CONSTRUCTION, INC.
DRH TITLE COMPANY OF COLORADO, INC.
DRH TUCSON CONSTRUCTION, INC.
DRHI, INC.
KDB HOMES, INC.
XXXXXXX I, LTD.
XXXXXXX VIII, LTD.
XXXXXXX IX, INC.
XXXXXXX X, INC.
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
Registration Rights Agreement S-2
CH INVESTMENTS OF TEXAS, INC.
XXXXXXX II, LTD.
By: /s/ XXXXXXX XXXX
--------------------------------------
Xxxxxxx Xxxx
President
Registration Rights Agreement S-3
CONTINENTAL HOMES OF TEXAS, L.P.
By: CHTEX of Texas, Inc., its general partner
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
Xxxxxx X. Xxxxxx, Treasurer
X.X. XXXXXX MANAGEMENT COMPANY, LTD.
X.X. XXXXXX - EMERALD, LTD.
X.X. XXXXXX - TEXAS, LTD.
DRH REGREM VII, LP
By: Xxxxxxx I, Ltd., its general partner
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
SGS COMMUNITIES AT GRANDE QUAY, LLC
By: Xxxxxxx IX, Inc., a member
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
and
By: Xxxxxxx X, Inc., a member
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
DRH CAMBRIDGE HOMES, LLC
DRH REGREM VIII, LLC
By: X.X. Xxxxxx, Inc. - Chicago, a member
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx
Treasurer
Registration Rights Agreement S-4
ALLEGRA, LLC
APLAM, LLC
WESTERN PACIFIC HOUSING CO.
WESTERN PACIFIC HOUSING-ANTIGUA, LLC
WESTERN PACIFIC HOUSING-AVIARA, L.P.
WESTERN PACIFIC HOUSING-BOARDWALK, LLC
WESTERN PACIFIC HOUSING-BROADWAY, LLC
WESTERN PACIFIC HOUSING-CANYON PARK, LLC
WESTERN PACIFIC HOUSING-CARMEL, LLC
WESTERN PACIFIC HOUSING-XXXXXXXX, LLC
WESTERN PACIFIC HOUSING-COMMUNICATIONS HILL, LLC
WESTERN PACIFIC HOUSING-CREEKSIDE, LLC
WESTERN PACIFIC HOUSING-XXXXXX CITY, L.P.
WESTERN PACIFIC HOUSING-LOMAS VERDES, LLC
WESTERN PACIFIC HOUSING-LOST HILLS PARK, LLC
WESTERN PACIFIC HOUSING-XXXXXXXXX CANYON, LLC
WESTERN PACIFIC HOUSING-MOUNTAINGATE, L.P.
WESTERN PACIFIC HOUSING-NORCO ESTATES, LLC
WESTERN PACIFIC HOUSING-OSO, L.P.
WESTERN PACIFIC HOUSING-PARK AVENUE EAST, LLC
WESTERN PACIFIC HOUSING-PARK AVENUE WEST, LLC
WESTERN PACIFIC HOUSING-PLAYA VISTA, LLC
WESTERN PACIFIC HOUSING-ROBINHOOD RIDGE, LLC
WESTERN PACIFIC HOUSING-SANTA FE, LLC
WESTERN PACIFIC HOUSING-SCRIPPS II, LLC
WESTERN PACIFIC HOUSING-SCRIPPS, L.P.
WESTERN PACIFIC HOUSING-SEACOVE, L.P.
WESTERN PACIFIC HOUSING-STUDIO 528, LLC
WESTERN PACIFIC HOUSING-TERRA BAY DUETS, LLC
WESTERN PACIFIC HOUSING-TORRANCE, LLC
WESTERN PACIFIC HOUSING-TORREY COMMERCIAL, LLC
WESTERN PACIFIC HOUSING-XXXXXX XXXXXXX, LLC
WESTERN PACIFIC HOUSING-TORREY MULTI-FAMILY, LLC
WESTERN PACIFIC HOUSING-TORREY VILLAGE CENTER, LLC
WESTERN PACIFIC HOUSING-VINEYARD TERRACE, LLC
WESTERN PACIFIC HOUSING-WINDEMERE, LLC
WESTERN PACIFIC HOUSING-WINDFLOWER, L.P.
WPH-CAMINO XXXX, LLC
WPH-HPH, LLC
By: LAMCO Housing, Inc.,
its Member or General Partner
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
Registration Rights Agreement S-5
XXXXXXX HOMES OF ARIZONA LLC
SHA CONSTRUCTION LLC
By: SRHI LLC,
its Member
By: SLHR of Nevada, Inc.,
its Member
By: /s/ XXXXXX X. XXXXXX
---------------------------
Xxxxxx X. Xxxxxx
Vice President
HPH HOMEBUILDERS 2000 X.X.
XXXXXX GP LLC
By: WPH-HPH, LLC,
its General Partner or Member
By: LAMCO Housing, Inc.,
its Member
By: /s/ XXXXXX X. XXXXXX
---------------------------
Xxxxxx X. Xxxxxx
Vice President
AP LHI, INC.
AP WESTERN GP CORPORATION
AP WP OPERATING CORPORATION
LAMCO HOUSING, INC.
MELODY HOMES, INC.
MELMORT CO.
XXXXXXX HOMES OF CALIFORNIA, INC.
XXXXXXX HOMES OF OREGON, INC.
XXXXXXX HOMES OF WASHINGTON, INC.
XXXXXXX MORTGAGE, INC.
XXXXXXX REALTY HAWAII, INC.
XXXXXXX REALTY/MAUI, INC.
SHLR OF CALIFORNIA, INC.
SHLR OF COLORADO, INC.
SHLR OF NEVADA, INC.
SHLR OF UTAH, INC.
SHLR OF WASHINGTON, INC.
VERTICAL CONSTRUCTION CORPORATION
WESTERN PACIFIC FUNDING, INC.
WESTERN PACIFIC HOUSING MANAGEMENT, INC.
WESTERN PACIFIC HOUSING, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
Registration Rights Agreement S-6
X.X. XXXXXX-XXXXXXX HOMES, LLC
By: Vertical Construction Corporation,
its Manager
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SRHI LLC
By: SHLR of Nevada, Inc.,
its Member
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
SSHI LLC
By: SHLR of Washington, Inc.,
its Member
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
WESTERN PACIFIC HOUSING-COPPER CANYON, LLC
WESTERN PACIFIC HOUSING-PACIFIC PARK II, LLC
WESTERN PACIFIC HOUSING-POINSETTIA, L.P.
WESTERN PACIFIC HOUSING-DEL XXXXX, LLC
By: AP Western GP Corporation,
its Member or General Partner
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
WESTERN PACIFIC HOUSING-RIVER RIDGE, LLC
By: AP LHI, Inc.,
its Member
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
AP WP PARTNERS, L.P.
By: AP WP Operating Corporation,
its General Partner
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Vice President
Registration Rights Agreement S-7
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
BANC OF AMERICA SECURITIES LLC
CREDIT LYONNAIS SECURITIES (USA) INC.
FLEET SECURITIES, INC.
By: XXXXXXX XXXXX BARNEY INC.,
as Representative of the Initial Purchasers
By: /s/ XXXX X. XXXXXXXXX
----------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
S-8
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of New
Securities received in exchange for Securities where such Securities were
acquired by such Broker-Dealer as a result of market-making activities or other
trading activities. Each of the Issuers has agreed that, starting on the
Expiration Date (as defined herein) and ending on the earlier of (i) the close
of business on the 180th day after the Expiration Date (extended by the number
of days during such period that any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement (as defined herein))
and (ii) the close of business on the date upon which all such Broker-Dealers
have sold all New Securities held by them, it will make this Prospectus
available, as amended or supplemented, to any Broker-Dealer for use in
connection with any such resale. See "Plan of Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the earlier of (i) the close
of business on the 180th day after the Expiration Date (extended by the number
of days during such period that any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement (as defined herein))
and (ii) the close of business on the date upon which all such Broker-Dealers
have sold all New Securities held by them, they will make this Prospectus, as
amended or supplemented, available to any Broker-Dealer for use in connection
with any such resale. In addition, until __________, 200_, all dealers effecting
transactions in the New Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of New
Securities by Brokers-Dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Act, and any profit of any such
resale of New Securities and any commissions or concessions received by any such
Persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a Broker-Dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
For a period that is the earlier of (i) the close of business
on the 180th day after the Expiration Date (extended by the number of days
during such period that any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement (as defined herein))
and (ii) the close of business on the date upon which all such Broker-Dealers
have sold all New Securities held by them, the Issuers will promptly send
additional copies of
-2-
this Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. The
Issuers have agreed to pay all expenses incident to the Exchange Offer
(including the expenses of one counsel for the holders of the Securities) other
than commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
------------------------------
Address:
------------------------------
------------------------------
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has not arrangements or understandings with any Person to participate in
a distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
