Exhibit 4.4
EXECUTION COPY
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Registration Rights Agreement
Dated as of April 30, 1997
by and among
KSL RECREATION GROUP, INC.
as Issuer,
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
SALOMON BROTHERS INC
CREDIT SUISSE FIRST BOSTON CORPORATION
BANCAMERICA SECURITIES, INC.
XXXXXXXXXX SECURITIES
AND
SCOTIA CAPITAL MARKETS (USA) INC.,
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made
and entered into as of April 30, 1997, by and among KSL Recreation Group, Inc.,
a Delaware corporation (the "Issuer"), as issuer, and Xxxxxxxxx Lufkin &
Xxxxxxxx Corporation ("DLJ"), Salomon Brothers Inc, Credit Suisse First Boston
Corporation, BancAmerica Securities, Inc., Xxxxxxxxxx Securities and Scotia
Capital Markets (USA), Inc. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated April 24, 1997, among the Issuer and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Issuer to the Initial Purchasers
of $125,000,000 aggregate principal amount of the Issuer's 10 1/4% Senior
Subordinated Notes due 2007 (the "Notes"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Issuer has agreed to
provide to the Initial Purchasers and their direct and indirect transferees and
assigns 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
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Broker-Dealer" shall mean any broker or dealer
registered under the 1934 Act.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Issuer, provided, however, that any such
depositary must have an address in the Borough of Manhattan, in the City of New
York.
"Exchange Notes" shall mean 10 1/4% Senior Subordinated Notes
due 2007 to be issued by the Issuer under the Indenture containing terms
identical to the Notes (except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Notes or, if no such interest has
been paid, from April 30, 1997, (ii) the transfer restrictions thereon shall be
eliminated and (iii) certain provisions relating to an increase in the stated
rate of interest thereon shall be eliminated) to be offered to
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Holders of Notes in exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Issuer
of Registrable Notes for Exchange Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as
they own any Registrable Notes, and each of their successors, assigns and direct
and indirect transferees who become registered owners of Registrable Notes under
the Indenture.
"Indenture" shall mean the Indenture relating to the Notes
dated as of April 29, 1997, between the Issuer and First Trust of New York,
National Association, as trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in
the preamble of this Agreement.
"Issuer" shall have the meaning set forth in the preamble of
this Agreement and also includes the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Issuer or
any of its affiliates (as such term is defined in Rule 405 under the 0000 Xxx)
(other than the Initial Purchasers or subsequent holders of Registrable Notes if
such subsequent holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Notes) shall be disregarded in determining
whether such consent or approval was given by the Holders of such required
percentage or amount.
"Person" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Participating Broker-Dealer" means any Broker-Dealer
which holds Participating Broker-Dealer Notes.
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"Participating Broker-Dealer Notes" shall mean Notes acquired
by a Broker-Dealer in the Exchange Offer that such broker or dealer acquired for
its own account as a result of market making activities or other trading
activities (other than Registrable Notes acquired directly from the Issuer or
any of its affiliates).
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Notes covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in
the preamble of this Agreement.
"Registrable Notes" shall mean each Note, until the earliest
to occur of (a) the date on which such Note is exchanged in the Exchange Offer
and entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Act, (b) the date on which such
Note has been disposed of in accordance with a Shelf Registration Statement, (c)
the date on which such Note is disposed of by a Broker-Dealer pursuant to the
"Plan of Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the 1933
Act.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Issuer with this Agreement,
including without limitation: (i) all SEC and National Association of Securities
Dealers, Inc. ("NASD") registration and filing fees, if any (including, without
limitation, the fees and expenses of any "qualified independent underwriter"),
(ii) all fees and expenses incurred in connection with compliance with state
securities, blue sky or other securities laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with
state securities, blue sky or other securities qualification or of any of the
Exchange Notes or Registrable Notes), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus, any amendments or supplements
thereto, certificates representing the Exchange Notes and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, if any, (v) the fees and disbursements of counsel for the
Issuer and, in the case of a Shelf Registration Statement, the reasonable fees
and disbursements (including the expenses of preparing and distributing any
underwriting or securities sales agreement) of one counsel (in addition to
appropriate local counsel) for the Holders (which counsel shall be selected in
writing by the Majority Holders), (vi)
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all application and filing fees in connection with listing the Exchange Notes on
a national securities exchange or an automated quotation system, if any, (vii)
the reasonable fees and expenses of the independent public accountants of the
Issuer, including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, and (viii) the
reasonable fees and expenses of the trustee, including its counsel, and any
escrow agent or custodian, but excluding underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Registrable
Notes by a Holder.
"Registration Statement" shall mean any registration statement
of the Issuer which covers any of the Exchange Notes or Registrable Notes
pursuant to the provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuer pursuant to the provisions of Section 2(b)
of this Agreement which covers all of the then Registrable Notes on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the
Notes under the Indenture.
2. Registration Under the 1933 Act.
(a) EXCHANGE OFFER REGISTRATION. To the extent not
prohibited by any applicable law or applicable interpretation of the Staff of
the SEC, the Issuer shall (A) file an Exchange Offer Registration Statement
covering the offer by the Issuer to the Holders to exchange all of their
Registrable Notes for Exchange Notes, (B) use its best efforts to cause such
Exchange Offer Registration Statement to be declared effective by the SEC within
150 days after the date hereof, (C) use its best efforts to cause such Exchange
Offer Registration Statement to remain effective until the closing of the
Exchange Offer or, in accordance with the procedures set forth in Section 3(f),
to the extent any Participating Broker-Dealer participates in the Exchange
Offer, use its best efforts to maintain the effectiveness of the Exchange Offer
Registration Statement for a period ending on the earlier to occur of (i) the
date when all Exchange Notes held by Participating
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Broker-Dealers have been sold and (ii) 180 days after the consummation of the
Exchange Offer and (D) use its best efforts to consummate the Exchange Offer on
or prior to 180 days following the date hereof. No securities other than the
Exchange Notes shall be included in the Exchange Offer Registration Statement.
The Exchange Notes will be issued under the Indenture. Upon the effectiveness of
the Exchange Offer Registration Statement, the Issuer shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers exchanging Participating
Broker-Dealer Notes for Exchange Notes (assuming that such Holder is not an
affiliate of the Issuer within the meaning of Rule 405 under the 1933 Act,
acquires the Exchange Notes in the ordinary course of such Holder's business and
has no arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing the Exchange Notes) to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
In connection with the Exchange Offer, the Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20
business days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) use the services of the Depositary for the
Exchange Offer with respect to Notes evidenced by global
certificates;
(iv) permit Holders to withdraw tendered Registrable Notes at
any time prior to the close of business, New York City time, on the
last business day on which the Exchange Offer shall remain open, by
sending to the institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Notes delivered for exchange, and a
statement that such Holder is withdrawing his election to have such
Notes exchanged;
(v) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the SEC (A) stating that
the Issuer is registering the Exchange Offer in reliance on the
position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the SEC's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including,
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if applicable, any no-action letter obtained pursuant to clause (v)
above) and (B) including a representation that the Issuer has not
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of the Issuer's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer; and
(vi) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Issuer shall:
(i) accept for exchange Registrable Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the letter
of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Registrable Notes so accepted for
exchange by the Issuer; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes to each Holder of Registrable Notes equal in amount to
the Registrable Notes of such Holder so accepted for exchange.
The Exchange Offer shall not be subject to any conditions,
other than (i) that the Exchange Offer, or the making of any exchange by a
Holder, does not, in the good faith determination of the Issuer, (a) violate
applicable law, statute, rule or regulation, or (b) violate any applicable
interpretation of the Staff of the SEC and (ii) that there has been no action or
proceeding instituted in any court or before any governmental agency or
regulatory authority or any injunction, order or decree issued with respect to
the Exchange Offer, which would prohibit the Issuer from proceeding with the
Exchange Offer. Each Holder of Registrable Notes (other than Participating
Broker-Dealers) who wishes to exchange such Registrable Notes for Exchange Notes
in the Exchange Offer shall have represented that (i) it is not an affiliate (as
defined in Rule 405 under the 0000 Xxx) of the Issuer, (ii) any Exchange Notes
to be received by it were acquired in the ordinary course of business, (iii) at
the time of the commencement of the Exchange Offer it has no arrangement with
any person to participate in the distribution (within the meaning of the 0000
Xxx) of the Exchange Notes and (iv) it is not acting on behalf of any person who
could not make the representations in clauses (i) through (iii). The Issuer
shall inform the Initial
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Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
(b) SHELF REGISTRATION. (i) If, because of any change in law
or applicable interpretations thereof by the Staff of the SEC, the Issuer is not
permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof,
or (ii) if for any other reason the Exchange Offer cannot be consummated within
180 days following the date hereof, or (iii) if any Holder (other than an
Initial Purchaser) is not eligible to participate in the Exchange Offer or (iv)
upon the request of any Initial Purchaser within 90 days (with respect to any
Registrable Notes which it acquired directly from the Issuer) following the
consummation of the Exchange Offer if any such Initial Purchaser shall hold
Registrable Notes which it acquired directly from the Issuer, the Issuer shall,
at its cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the then
outstanding Registrable Notes by the Holders from time to time in
accordance with the methods of distribution elected by the Holders of
such Registrable Notes and set forth in such Shelf Registration
Statement, and use its best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC by the 180th day after
the date hereof (or within 60 days following a request by any Initial
Purchaser pursuant to clause (iv) above). In the event that the Issuer
is required to file a Shelf Registration Statement upon the request of
any Holder (other than an Initial Purchaser) not eligible to
participate in the Exchange Offer pursuant to clause (iii) above or
upon the request of any Initial Purchaser pursuant to clause (iv)
above, the Issuer shall file and have declared effective by the SEC
both an Exchange Offer Registration Statement pursuant to Section 2(a)
with respect to all Registrable Notes and a Shelf Registration
Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales
of Registrable Notes held by such Holder or such Initial Purchaser
after completion of the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the Issuance Date (or one year from the date the Shelf
Registration Statement is declared effective if such Shelf Registration
Statement is filed upon the request of any Initial Purchaser pursuant
to clause (iv) above) or such shorter period which will terminate when
all of the Registrable Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
or all of the Registrable Notes become eligible for
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resale pursuant to Rule 144 under the 1933 Act without volume
restrictions; and
(C) notwithstanding any other provisions hereof use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement and any supplement to
such Prospectus (as amended or supplemented from time to time), does
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
The Issuer further agrees, if necessary, to supplement or
amend any such Shelf Registration Statement if reasonably requested by the
Holders with respect to information relating to the Holders and otherwise as
required by Section 3(b) below, to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Notes copies of any such supplement or amendment promptly after its
being used or filed with the SEC.
(c) Expenses. The Issuer shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) and 2(b). Each
Holder shall pay all expenses of its counsel other than as set forth in the
preceding sentence, underwriting discounts and commissions (prior to the
reduction thereof with respect to selling concessions, if any) and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Notes pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Issuer will be
deemed not to have used its best efforts to cause a Registration Statement to
become, or to remain, effective during the requisite period if the Issuer
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable Notes
covered thereby not being able to exchange or offer and sell such Registrable
Notes during that period unless (A) such action is required by applicable law or
(B) such action is taken by the Issuer in good faith and for valid business
reasons (but not including avoidance of the Issuer's obligations hereunder),
including a material corporate transaction, so long as the Issuer promptly
complies with the requirements of Section 3(k) hereof, if applicable.
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(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC, provided, however, that if, after it has been declared
effective, the offering of Registrable Notes pursuant to a Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Registrable Notes pursuant to
such Registration Statement may legally resume.
(e) Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Issuer acknowledges
that any failure by the Issuer to comply with its respective obligations under
Sections 2(a) and 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 Issuer's
obligations under Sections 2(a) and 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Issuer with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Issuer shall:
(a) prepare and file with the SEC a Registration Statement,
within the time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Issuer,
(ii) shall, in the case of a Shelf Registration, be available for the
sale of the Registrable Notes by the selling Holders thereof, (iii)
shall, in the case of the Exchange Offer Registration Statement, be
available for the sale of Participating Broker-Dealer Notes by the
Holders thereof and (iv) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC
to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to (i) the Exchange Offer Registration
Statement as may be necessary under applicable law to keep such
Exchange Offer Registration Statement effective for the period required
to comply with Section 2(a) (except to the extent the Issuer is unable
to consummate the Exchange Offer and the Issuer complies with Section
2(b)), and (ii) the Shelf Registration Statement as may be necessary
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under applicable law to keep such Shelf Registration Statement
effective for the period required pursuant to Section 2(b) hereof;
cause each Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the 1933 Act, and comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Notes, at least ten days prior to filing, that
the Shelf Registration Statement with respect to the Registrable Notes
is being filed and advising such Holders that the distribution of
Registrable Notes will be made in accordance with the method elected by
the Holders; and (ii) furnish to each Holder of Registrable Notes, to
counsel for the Initial Purchasers, to counsel for the Holders and to
each underwriter of an underwritten offering of Registrable Notes, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and
such other documents as such Holder or underwriter may reasonably
request, including financial statements and schedules and, if the
Holder specifically so requests in writing, all exhibits (including
those incorporated by reference) in order to facilitate the public sale
or other disposition of the Registrable Notes; and (iii) subject to the
last paragraph of Section 3, hereby consents to the use of the
Prospectus, including each preliminary Prospectus, or any amendment or
supplement thereto by each of the selling Holders of Registrable Notes
in connection with the offering and sale of the Registrable Notes
covered by the Prospectus or any amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Notes under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Notes covered
by a Registration Statement and each underwriter of an underwritten
offering of Registrable Notes shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, to
cooperate with the Holders in connection with any filings required to
be made with the NASD, keep each such registration or qualification
effective during the period such Registration Statement is required to
be effective and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Notes
owned by such Holder, provided, however, that the Issuer shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d) or (ii) take any action which
would subject it to general service
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of process or taxation in any such jurisdiction if it is not
then so subject;
(e) in the case of a Shelf Registration and, to the extent
that the Issuer is required to maintain an effective Exchange Offer
Registration Statement for any Participating Broker-Dealer pursuant to
Section 2(a) above, notify each Holder of Registrable Notes and counsel
for such Holders promptly and, if requested by such Holder or counsel,
confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments
and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the Issuer contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and
correct in all material respects, (v) of the receipt by the Issuer of
any notification with respect to the suspension of the qualification of
the Registrable Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the happening
of any event or the discovery of any facts during the period such
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vii) of any determination by the Issuer
that a post-effective amendment to a Registration Statement would be
appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by a Participating Broker-Dealer who holds
Participating Broker- Dealer Notes; provided that such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the
amount of Notes held by any such Broker-Dealer, except to the extent
required by the SEC as a result of a change in policy after the date of
this Agreement, (ii) furnish to each Participating Broker-Dealer,
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker- Dealer may reasonably request, (iii) include in
the Exchange
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Offer Registration Statement a statement that any Participating
Broker-Dealer who receives Exchange Notes for Registrable Notes
pursuant to the Exchange Offer, may be a statutory underwriter and must
deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Notes, (iv) subject to the
last paragraph of Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto, by any Participating Broker-
Dealer in connection with the sale or transfer of the Participating
Broker-Dealer Notes covered by the Prospectus or any amendment or
supplement thereto, and (v) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the
undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Registrable Notes,
it represents that the Registrable Notes to be exchanged for
Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and
acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
such Exchange Notes acquired pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act"; and
(y) a statement to the effect that by a Participating Broker- Dealer
making the acknowledgment described in subclause (x) and by delivering
a Prospectus in connection with the sale of Participating Broker-Dealer
Notes received in exchange for Registrable Notes, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act; and
(B) to the extent any Participating Broker-Dealer participates
in the Exchange Offer, the Issuer shall cause to be delivered at the
request of an entity representing the Participating Broker-Dealers
(which entity shall be one of the Initial Purchasers, unless it elects
not to act as such representative) only one, if any, "cold comfort"
letter with respect to the Prospectus in the form existing on the last
date for which exchanges are accepted pursuant to the Exchange Offer
and with respect to each subsequent amendment or supplement if any,
effected during the period specified in Section 2(a) above;
(C) the Issuer shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
13
Registration Statement as would otherwise be contemplated by Section
3(b), or take any other action as a result of this Section 3(f), for a
period exceeding the time specified in Section 2(a)(C) (as such period
may be extended by the Issuer) and Participating Broker-Dealers shall
not be authorized by the Issuer to, and shall not, deliver such
Prospectus after such period has lapsed in connection with resales
contemplated by this Section 3.
(g) (A) in the case of an Exchange Offer, furnish counsel for
Participating Broker-Dealers, if any, and (B) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable Notes
copies of any request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus or
for additional information;
(h) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement as
soon as practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration and, to the extent
that the Issuer is required to maintain an effective Exchange Offer
Registration Statement for any Participating Broker-Dealer pursuant to
Section 2(a) above, furnish to each Holder of Registrable Notes,
without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested);
(j) in the case of a Shelf Registration and, to the extent
that the Issuer is required to maintain an effective Exchange Offer
Registration Statement for any Participating Broker-Dealer pursuant to
Section 2(a) above, cooperate with the selling Holders of Registrable
Notes to facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold and not bearing any
restrictive legends; and cause such Registrable Notes to be in such
denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request at least one business day prior to the
closing of any sale of Registrable Notes;
(k) in the case of a Shelf Registration and, to the extent
that the Issuer is required to maintain an effective Exchange Offer
Registration Statement for any Participating Broker-Dealer pursuant to
Section 2(a) above, upon the occurrence of any event or the discovery
of any facts, each as contemplated by Section 3(e)(vi) hereof, use its
best efforts to prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any
14
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Notes, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Issuer agrees to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Issuer
has amended or supplemented the Prospectus to correct such misstatement
or omission. At such time as such public disclosure is otherwise made
or the Issuer determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to include any
omitted material fact, the Issuer agrees promptly to notify each Holder
of such determination and to furnish each Holder such numbers of copies
of the Prospectus, as amended or supplemented, as such Holder may
reasonably request;
(l) obtain a CUSIP number for all Exchange Notes, or
Registrable Notes, as the case may be, not later than the effective
date of a Registration Statement, and provide the Trustee with printed
certificates for the Exchange Notes or the Registrable Notes, as the
case may be, in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA") no later than the
effective date of the first Registration Statement required by this
Agreement, (ii) cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA and (iii)
execute, and use its best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration and, to the extent
that the Issuer is required to maintain an effective Exchange Offer
Registration Statement for any Participating Broker-Dealer pursuant to
Section 2(a) above, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions
(including those reasonably requested by the Majority Holders) in order
to expedite or facilitate the disposition of such Registrable Notes and
in such connection whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the
Holders of such Registrable Notes and the underwriters, if
any, in form, substance and scope as are customarily
15
made by issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Issuer and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the holders of a majority
in principal amount of the Registrable Notes being sold)
addressed to each selling Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested
in sales of securities or underwritten offerings;
(iii) obtain "cold comfort" letters and updates
thereof from the Issuer's independent certified public
accountants addressed to the underwriters, if any, and use
best efforts to have such letters addressed to the selling
Holders of Registrable Notes, such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" letters to underwriters in connection with
similar underwritten offerings;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among other
things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable Notes,
which agreement shall be in form, substance and scope
customary for similar offerings; and
(v) deliver such documents and certificates as may be
reasonably requested and as are customarily delivered in
similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten
offering, the Issuer shall provide written notice to the Holders of all
Registrable Notes of such underwritten offering at least 30 days prior
to the filing of a prospectus supplement for such underwritten
offering. Such notice shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify a date, which
shall be no earlier than ten days following the date of such notice, by
which such Holder must inform the Issuer of its intent to participate
in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten
offering;
(o) in the case of a Shelf Registration and, to the
extent that the Issuer is required to maintain an effective
Exchange Offer Registration Statement for any Participating
16
Broker-Dealer pursuant to Section 2(a) above, make available for
inspection by representatives of the Holders of the Registrable Notes
and any underwriters participating in any disposition pursuant to such
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, at reasonable times and in a reasonable
manner, all financial and other records, pertinent corporate documents
and properties of the Issuer reasonably requested by any such persons,
and cause the respective officers, directors, employees, and any other
agents of the Issuer to supply all information reasonably requested by
any such representative, underwriter, special counsel or accountant in
connection with such Registration Statement, provided, however, that
such Persons shall first agree in writing with the Issuer that any
information that is reasonably and in good faith designated by the
Issuer in writing as confidential at the time of delivery of such
information shall be kept confidential by such Persons, unless (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of such Registration Statement or
the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such Person or (iv) such
information becomes available to such Person from a source other than
the Issuer and its subsidiaries and such source is not known, after due
inquiry, by the relevant Holder to be bound by a confidentiality
agreement; provided further, that the foregoing investigation shall be
coordinated on behalf of the Holders by one representative designated
by and on behalf of such Holders and any such confidential information
shall be available from such representative to such Holders so long as
any Holder agrees to be bound by such confidentiality agreement;
(p) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to the
Initial Purchasers and each other Broker-Dealer that has notified the
Issuer that it may or has exchanged Registrable Notes for Participating
Broker-Dealer Notes, and make such changes in any such document prior
to the filing thereof as any of the Initial Purchasers or such
Broker-Dealers or their counsel may reasonably request; (ii) in the
case of a Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Notes, to the Initial Purchasers, to counsel on
behalf of the Holders and to the
17
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any, and make such changes in any such document prior to the
filing thereof as the Holders of Registrable Notes, the Initial
Purchasers on behalf of such Holders, their counsel and any underwriter
may reasonably request; and (iii) cause the representatives of the
Issuer to be available for discussion of such document as shall be
reasonably requested by the Holders of Registrable Notes, the Initial
Purchasers on behalf of such Holders or any underwriter and shall not
at any time make any filing of any such document of which such Holders,
the Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall not have previously been advised and furnished a copy
or to which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall reasonably object, each
of which actions in this clause (iii) by the Holders shall be
coordinated by one representative for all the Holders at reasonable
times and in a reasonable manner;
(q) in the case of a Shelf Registration, use their best
efforts to cause all Registrable Notes to be listed on any securities
exchange, if any, on which similar debt securities issued by the Issuer
are then listed if requested by the Majority Holders or by the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any;
(r) in the case of a Shelf Registration, unless the rating in
effect for the Notes applies to the Exchange Notes and the Notes to be
sold pursuant to a Shelf Registration, use its best efforts to cause
the Registrable Notes to be rated with the appropriate rating agencies,
if so requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Notes, if any,
unless the Registrable Notes are already so rated;
(s) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earning
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
(t) cooperate and assist in any filings required to be
made with the NASD.
No Holder of Registrable Notes may include any of its
Registrable Notes in any Shelf Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Issuer in writing, within 20 days
after receipt of a request therefor, such information specified in item 507 of
Regulation S-K under the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Registrable Notes shall be entitled to additional interest as provided in such
Holder's Registrable Notes unless and until such
18
Holder shall have used its best efforts to provide all such information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Issuer all information required to be disclosed in order
to make the information previously furnished to the Issuer by such Holder not
materially misleading.
In the case of a Shelf Registration Statement and, to the
extent that the Issuer is maintaining an effective Exchange Offer Registration
Statement for any Participating Broker-Dealer pursuant to Section 2(a) above,
each Holder agrees that, upon receipt of any notice from the Issuer of the
happening of any event or the discovery of any facts, each of the kind described
in Section 3(e)(ii)-(vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Notes pursuant to such Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Issuer, such
Holder will deliver to the Issuer (at its expense) all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Notes current at the time of receipt of
such notice. The Issuer will be deemed not to have used its best efforts to
cause a Registration Statement to remain effective during the requisite period
if the Issuer has voluntarily taken any action that resulted in the delivery of
a notice described in Section 3(e)(vi) hereof unless (A) such action was
required by applicable law or (B) such action was taken by the Issuer in good
faith and for valid business reasons (but not including avoidance of the
Issuer's obligations hereunder), including a material corporate transaction;
provided that, in any event, the aggregate number of days in any consecutive
twelve-month period for which a Registration Statement is not effective or
usable does not exceed 30 days. In any event, any suspension pursuant to this
paragraph shall extend the period during which the Registration Statement shall
be maintained effective pursuant to this Agreement by the number of days during
the period from and including the date of the giving of such notice to and
including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Issuer.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (b) completes and
19
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
5. Indemnification and Contribution.
(a) The Issuer agrees to indemnify and hold harmless (i) each Holder
and (ii) each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Issuer by any of the
Holders expressly for use therein. The Issuer also agrees to reimburse each
Indemnified Person for any and all fees and expenses (including, without
limitation, the fees and expenses of counsel) as they are incurred in connection
with enforcing such Indemnified Person's rights under this Agreement (including,
without limitation, its rights under this Section 5).
In case any action or proceeding (including any governmental
or regulatory investigation or proceeding) shall be brought or asserted against
any of the Indemnified Holders with respect to which indemnity may be sought
against the Issuer, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Issuer in
writing (provided, that the failure to give such notice shall not relieve the
Issuer of its obligations pursuant to this Agreement unless such failure
materially prejudices the Issuer). Such Indemnified Holder shall have the right
to employ its own counsel in any such action and the fees and expenses of such
counsel shall be paid, as incurred, by the Issuer (regardless of whether it is
ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). The Issuer shall not, in connection
20
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for such Indemnified Holders, which firm shall be
designated by the Holders. The Issuer shall be liable for any settlement of any
such action or proceeding effected with the Issuer's prior written consent,
which consent shall not be withheld unreasonably, and the Issuer agrees to
indemnify and hold harmless each Indemnified Holder from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Issuer. The Issuer shall not, without
the prior written consent of each Indemnified Holder, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Registrable Notes agrees, severally and not
jointly, to indemnify and hold harmless the Issuer and its directors, officers,
and any person controlling (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Issuer, and its officers, directors,
partners, employees, representatives and agents of each such person, to the same
extent as the foregoing indemnity from the Issuer to each of the Indemnified
Holders, but only with respect to claims and actions based on information
relating to such Holder furnished in writing by such Holder expressly for use in
any Registration Statement. In case any action or proceeding shall be brought
against the Issuer or its directors or officers or any such controlling person
in respect of which indemnity may be sought against a Holder of Registrable
Notes, such Holder shall have the rights and duties given the Issuer, and the
Issuer, such directors or officers or such controlling person shall have the
rights and duties given to each Holder by the preceding paragraph. In no event
shall any Holder be liable or responsible for any amount in excess of the amount
by which the total received by such Holder with respect to its sale of
Registrable Notes pursuant to a Registration Statement exceeds (i) the amount
paid by such Holder for such Registrable Notes and (ii) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(c) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under Section 5(a) or Section 5(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party,
21
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Issuer, on the one hand, and the Holders, on the other hand, from their sale of
Registrable Notes or if such allocation is not permitted by applicable law, the
relative fault of the Issuer, on the one hand, and of the Indemnified Holder, on
the other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Issuer, on the one
hand, and of the Indemnified Holder, on the other hand, 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 Issuer or by the Indemnified Holder and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 5(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Issuer and each Holder of Registrable Notes agree that it
would not be just and equitable if contribution pursuant to this Section 5(c)
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 which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 5, no Holder or
its related Indemnified Holders shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Registrable Notes pursuant to a
Registration Statement exceeds the sum of (A) the amount paid by such Holder for
such Registrable Notes plus (B) the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 5(c) are several in proportion to the respective principal amount of
Notes held by each of the Holders hereunder and not joint.
22
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
the Issuer is subject to the reporting requirements of Section 13 or 15 of the
1934 Act, the Issuer covenants that it will file the reports required to be
filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required
to file such reports, it will upon the request of any Holder of Registrable
Notes (i) make publicly available such information as is necessary to permit
sales pursuant to Rule 144 under the 1933 Act, (ii) deliver such information to
a prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any Holder of
Registrable Notes may reasonably request, and (iii) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Notes without
registration under the 1933 Act within the limitation of the exemptions provided
by (x) Rule 144 under the 1933 Act, as such Rule may be amended from time to
time, (y) Rule 144A under the 1933 Act, as such Rule may be amended from time to
time, or (z) any similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Notes, the Issuer will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Issuer represents and
agrees that (i) it has not entered into nor will the Issuer on or after the date
of this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof and (ii) the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Issuer's other issued and outstanding
securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Issuer has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; provided, however, that no amendment, modification, supplement or
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder (other than an Initial Purchaser), at the most current address
set forth on the records of the Registrar under the Indenture, (ii) if to an
Initial Purchaser, at the most current address given by such
23
Initial Purchaser to the Issuer by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement; and (iii) if to the Issuer, initially at the
Issuer's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer on the one
hand, 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 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 and shall not limit or otherwise affect the
meaning hereof.
24
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
25
If the foregoing is in accordance with your understanding of
this Agreement, kindly sign and return to us a counterpart hereof, whereupon
this instrument will become a binding agreement between the Issuer and the
several Initial Purchasers in accordance with its terms. Initial Purchasers,
kindly indicate your acceptance in the space provided for that purpose below.
Very truly yours,
KSL RECREATION GROUP, INC.
By:
----------------------------------
Name:
Title:
Accepted and agreed to as of the date first written above:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
SALOMON BROTHERS INC
CREDIT SUISSE FIRST BOSTON CORPORATION
BANK AMERICA SECURITIES, INC.
XXXXXXXXXX SECURITIES
SCOTIA CAPITAL MARKETS (USA) INC.
Acting severally on behalf of
themselves and the several
Initial Purchasers names
in Schedule I hereto
BY: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
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Name:
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