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EXHIBIT 4.4
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EXHIBIT 4.4
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REGISTRATION RIGHTS AGREEMENT
Dated as of September 28, 1995
by and among
XXXXXX COMMUNICATIONS CORPORATION,
THE GUARANTORS
named herein
and
WOOD GUNDY INC.
and XXXXX XXXXXX INC.
as Initial Purchasers
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TABLE OF CONTENTS
Page
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8. Rules 144 and 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9. Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
a. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
b. Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
c. No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
d. Adjustments Affecting Registrable Notes . . . . . . . . . . . . . . . . . . . . . 23
e. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
f. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
g. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
h. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
i. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
j. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
k. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
l. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
m. Joint and Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 25
n. Notes Held by the Company or Its Affiliates . . . . . . . . . . . . . . . . . . . 00
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XXXXXXXXXXXX RIGHTS AGREEMENT (the "Agreement") dated as of
September 28, 1995, by and among XXXXXX COMMUNICATIONS CORPORATION, a Delaware
corporation (the "Company"), its direct and indirect subsidiaries
(collectively, the "Guarantors"), and WOOD GUNDY INC. and XXXXX XXXXXX INC., as
initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the
Securities Purchase Agreement, dated as of September 22, 1995, among the
Company, the Guarantors and the Initial Purchasers (the "Purchase Agreement")
relating to the sale by the Company to the Initial Purchasers of $230,000,000
aggregate principal amount of the Company's 11 5/8% Senior Subordinated Notes
due 2002 (the "Notes") and the guarantee of the Notes by the Guarantors (the
"Guarantee"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
Advice: See Section 5.
Applicable Period: See Section 2(b).
Closing: See the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 150th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
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Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 30th day after the Issue Date.
Guarantors: The direct and indirect Subsidiaries of the
Company as defined in the introductory paragraph of this Agreement.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of September 28, 1995,
among the Company, the Guarantors and The Bank of New York, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes are sold to
the Initial Purchasers pursuant to the Purchase Agreement.
Issuers: The Company and the Guarantors.
Lien: See the Indenture.
NASD: See Section 5(t).
Notes: See the introductory paragraphs to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
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Person: An individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government (including any agency or political subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes : See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Notes covered by such Registration
Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 5(o).
Registrable Notes: The Notes upon original issuance of the
Notes and at all times subsequent thereto and, if issued, the Private Exchange
Notes, until in the case of any such Notes or any such Private Exchange Notes,
as the case may be, (i) a Registration Statement covering such Notes or such
Private Exchange Notes has been declared effective by the SEC and such Notes or
such Private Exchange Notes, as the case may be, have been disposed of in
accordance with such effective Registration Statement, (ii) such Notes or such
Private Exchange Notes, as the case may be, are sold in compliance with Rule
144, (iii) in the case of any Note, such Note has been exchanged for an
Exchange Note or Exchange Notes pursuant to an Exchange Offer or (iv) such
Notes or such Private Exchange Notes, as the case may be, cease to be
outstanding.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of the
Issuers, including, but not limited to, the Exchange Registration Statement,
which covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
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Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent,
the trustee under any indenture governing the Exchange Notes and Private
Exchange Notes (if any).
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Issuers are sold to an
underwriter(s) for reoffering to the public.
2. Exchange Offer
(a) Each of the Issuers agrees to use its best efforts to
file with the SEC as soon as practicable after the Closing, but in no event
later than the Filing Date, an offer to exchange (the "Exchange Offer") any and
all of the Registrable Notes for a like aggregate
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principal amount of debt securities of the Company, guaranteed by the
Guarantors, which are identical to the Notes (the "Exchange Notes") (and which
are entitled to the benefits of the Indenture or a trust indenture which is
substantially identical to the Indenture (other than such changes to the
Indenture or any such identical trust indenture as are necessary to comply with
any requirements of the SEC to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA),
except that the Exchange Notes shall have been registered pursuant to an
effective Registration Statement under the Securities Act. The Exchange Offer
will be registered under the Securities Act on the appropriate form (the
"Exchange Registration Statement") and will comply with all applicable tender
offer rules and regulations under the Exchange Act. Each of the Issuers agrees
to use its best efforts to (x) cause the Exchange Registration Statement to
become effective under the Securities Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for at least 30 days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 60th day
following the date on which the Exchange Registration Statement is declared
effective. Each Holder who participates in the Exchange Offer will be required
to represent that any Exchange Notes received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
person to participate in the distribution of the Exchange Notes, and that such
Holder is not an affiliate of any of the Issuers within the meaning of Rule 405
promulgated under the Securities Act or if it is such an affiliate, that it
will comply with the registration and prospectus delivery requirements of the
Securities Act, to the extent applicable. Upon consummation of the Exchange
Offer in accordance with this Section 2, the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to Registrable Notes
that are Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers (as defined below), and the Issuers shall have no further
obligation to register Registrable Notes (other than Private Exchange Notes)
pursuant to Section 3 of this Agreement.
(b) The Issuers shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the
staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether
such positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, in the reasonable judgment of the Initial
Purchasers, represent the prevailing views of the staff of the SEC. Such "Plan
of Distribution" section shall also allow the use of the Prospectus by all
persons subject to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, and include a statement describing
the means by which Participating Broker-Dealers may resell the Exchange Notes.
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Each of the Issuers shall use its best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes, provided that such period
shall not exceed 180 days (or such longer period if extended pursuant to the
last paragraph of Section 5) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status as an unsold allotment in the
initial distribution, the Issuers upon the request of either Initial Purchaser
shall, simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to such Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by such Initial Purchaser, a like principal
amount of debt securities of the Company, guaranteed by the Guarantors, that
are identical in all material respects to the Exchange Notes (the "Private
Exchange Notes") (and which are issued pursuant to the same indenture as the
Exchange Notes). The Private Exchange Notes shall bear the same CUSIP number
as the Exchange Notes. Interest on the Exchange Notes and Private Exchange
Notes will accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the date of original issue.
In connection with the Exchange Offer, the Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and
(iii) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business
day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
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(iii) cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substantially identical to
the Indenture, which in either event will provide that the Exchange Notes will
not be subject to the transfer restrictions set forth in the Indenture and that
the Exchange Notes, the Private Exchange Notes and the Notes will vote and
consent together on all matters as one class and that neither the Exchange
Notes, the Private Exchange Notes nor the Notes will have the right to vote or
consent as a separate class on any matter.
(c) If (1) prior to the consummation of the Exchange
Offer, the Issuers or Holders of at least a majority in aggregate principal
amount of the Registrable Notes reasonably determine in good faith that (i) the
Exchange Notes would not, upon receipt, be tradeable by such Holders which are
not affiliates (within the meaning of the Securities Act) of the Issuers
without restriction under the Securities Act and without restrictions under
applicable state securities laws, (ii) the interests of the Holders under this
Agreement would be adversely affected by the consummation of the Exchange Offer
or (iii) after conferring with counsel, the SEC is unlikely to permit the
consummation of the Exchange Offer prior to the Effectiveness Date, (2)
subsequent to the consummation of the Private Exchange, any holder of the
Private Exchange Notes so requests or (3) the Exchange Offer is commenced and
not consummated within 180 days of the date of this Agreement, then the Issuers
shall promptly deliver to the Holders and the Trustee written notice thereof
(the "Shelf Notice") and shall file an Initial Shelf Registration pursuant to
Section 3. Following the delivery of a Shelf Notice to the Holders of
Registrable Notes (in the circumstances contemplated by clauses (1) and (3) of
the preceding sentence), the Issuers shall not have any further obligation to
conduct the Exchange Offer or the Private Exchange under this Section 2.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section
2(c), then:
(a) Initial Shelf Registration. The Issuers shall
prepare and file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the "Initial Shelf Registration"). If the Issuers shall have not yet
filed an Exchange Registration Statement, each of the Issuers shall use its
best efforts to file with the SEC the Initial Shelf Registration on or prior to
the Filing Date. In any other instance, each of the Issuers shall use its best
efforts to file with the SEC the Initial Shelf Registration within 30 days of
the delivery of the Shelf Notice. The Initial Shelf Registration shall be on
Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by such Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Issuers shall
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not permit any securities other than the Registrable Notes to be included in
the Initial Shelf Registration or any Subsequent Shelf Registration (as defined
below). Each of the Issuers shall use its best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date which is 36
months from the date on which such Initial Shelf Registration is declared
effective (subject to extension pursuant to the last paragraph of Section 5
hereof) (the "Effectiveness Period"), or such shorter period ending when (i)
all Registrable Notes covered by the Initial Shelf Registration have been sold
in the manner set forth and as contemplated in the Initial Shelf Registration
or (ii) a Subsequent Shelf Registration covering all of the Registrable Notes
has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time during the Effectiveness Period (other than because of
the sale of all of the securities registered thereunder), each of the Issuers
shall use its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, each of the
Issuers shall use its best efforts to cause the Subsequent Shelf Registration
to be declared effective as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf
Registration was previously continuously effective. As used herein the term
"Shelf Registration" means the Initial Shelf Registration and any Subsequent
Shelf Registration.
(c) Supplements and Amendments. The Issuers shall
promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter(s) of such
Registrable Notes.
4. Additional Interest
(a) The Issuers and the Purchaser agree that the Holders
of Registrable Notes will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuers, jointly and severally, agree to pay additional interest on the
Notes ("Additional Interest") under the circumstances set forth below:
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(i) if the Exchange Registration Statement or the Initial
Shelf Registration has not been filed on or prior to the Filing Date;
(ii) if the Exchange Registration Statement or the Initial
Shelf Registration has not been declared effective on or prior to the
Effectiveness Date; and/or
(iii) if either (A) the Company has not exchanged the
Exchange Notes for all Notes validly tendered in accordance with the
terms of the Exchange Offer on or prior to 60 days after the date on
which the Exchange Registration Statement was declared effective or
(B) the Exchange Registration Statement ceases to be effective at any
time prior to the time that the Exchange Offer is consummated or (C)
if applicable, the Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period;
(each such events referred to in clauses (i) through (iii) above is a
"Registration Default"), the sole remedy available to holders of the Notes will
be the immediate accrual of Additional Interest as follows: the per annum
interest rate on the Notes will increase by 50 basis points; and the per annum
interest rate will increase by an additional 25 basis points for each
subsequent 90-day period during which the Registration Default remains uncured,
up to a maximum additional interest rate of 200 basis points per annum,
provided, however, that (1) upon the filing of the Exchange Registration
Statement or the Initial Shelf Registration (in the case of (i) above), (2)
upon the effectiveness of the Exchange Registration Statement or a Shelf
Registration (in the case of (ii) above) or (3) upon the exchange of Exchange
Notes for all Notes tendered (in the case of (iii)(A) above), or upon the
effectiveness of the Exchange Registration Statement which had ceased to remain
effective (in the case of (iii)(B) above), or upon the effectiveness of the
Shelf Registration which had ceased to remain effective (in the case of
(iii)(C) above), Additional Interest on the Notes as a result of such clause
(i), (ii) or (iii) (or the relevant subclause thereof), as the case may be,
shall cease to accrue and the interest rate on the Notes will revert to the
interest rate originally borne by the Notes.
(b) The Issuers shall notify the Trustee within one
business day after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Any
amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of
this Section 4 will be payable in cash semi-annually on each April 1 and
October 1 (to the Holders of record on the March 15 and September 15
immediately preceding such dates), commencing with the first such date
occurring after any such Additional Interest commences to accrue, by depositing
with the Trustee, in trust for the benefit of such Holders, immediately
available funds in sums sufficient to pay such Additional Interest. The amount
of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the Registrable Notes,
multiplied by a fraction, the numerator of which is the number of days such
Additional
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Interest rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months), and the denominator of which
is 360.
5. Registration Procedures
In connection with the registration of any Registrable Notes
or Private Exchange Notes pursuant to Section 2 or 3 hereof, the Issuers shall
effect such registrations to permit the sale of such Registrable Notes or
Private Exchange Notes in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Issuers shall:
(a) Prepare and file with the SEC, prior to the Filing
Date, a Registration Statement or Registration Statements as
prescribed by Section 2 or 3, and to use their respective best efforts
to cause each such Registration Statement to become effective and
remain effective as provided herein, provided that, if (1) such
filing is pursuant to Section 3, or (2) a Prospectus contained in an
Exchange Registration Statement filed pursuant to Section 2 is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuers
shall, if requested, furnish to and afford the Holders of the
Registrable Notes and each such Participating Broker-Dealer, as the
case may be, covered by such Registration Statement, their counsel and
the managing underwriter(s), if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents
to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (at least 5 business days prior to such filing).
The Issuers shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders
must be afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement, or
such Participating Broker-Dealer, as the case may be, their counsel,
or the managing underwriter(s), if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations of the
SEC promulgated thereunder applicable to them with respect to the
disposition of all securities covered by such Registration Statement
as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such
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Prospectus; the Issuers shall be deemed not to have used their best
efforts to keep a Registration Statement effective during the
Applicable Period if any of them voluntarily takes any action that
would result in selling Holders of the Registrable Notes covered
thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Registrable Notes or such Exchange Notes
during that period unless such action is required by applicable law or
unless the Company complies with this Agreement, including without
limitation, the provisions of clause 5(c)(v) below.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), if any, promptly (but in any event within two business
days), and confirm such notice in writing, (i) when a Prospectus or
any prospectus supplement or post-effective amendment thereto has been
filed, and, with respect to a Registration Statement or any
post-effective amendment thereto, when the same has become effective
(including in such notice a written statement that any Holder may,
upon request, obtain, without charge, one conformed copy of such
Registration Statement or post-effective amendment thereto including
financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by
the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the
use of any preliminary Prospectus or the initiation of any proceedings
for that purpose, (iii) if at any time when a Prospectus is required
by the Securities Act to be delivered in connection with sales of the
Registrable Notes the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) below cease to be true and correct, (iv)
of the receipt by any of the Issuers of any notification with respect
to the suspension of the qualification or exemption from qualification
of a Registration Statement or any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer for offer
or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in,
or amendments or supplements to, such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated
15
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therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (vi) of
any Issuer's reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, use their best
efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing
or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Notes or
the Exchange Notes to be sold by any Participating Broker-Dealer, for
sale in any jurisdiction, and, if any such order is issued, to use
their best efforts to obtain the withdrawal of any such order at the
earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section
3 and if requested by the managing underwriter(s), if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Notes being sold in connection with an underwritten offering, (i)
promptly incorporate in a Prospectus supplement or post-effective
amendment thereto such information as the managing underwriter(s), if
any, or such Holders reasonably request to be included therein, (ii)
make all required filings of such Prospectus supplement or such
post-effective amendment thereto as soon as practicable after the
Company has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment thereto and
(iii) supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, furnish to each
selling Holder of Registrable Notes and to each such Participating
Broker-Dealer who so requests and to counsel and the managing
underwriter(s), if any, without charge, one conformed copy of the
Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period,
16
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deliver to each selling Holder of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel, and
the managing underwriter or underwriters, if any, without charge, as
many copies of the Prospectus or Prospectuses (including each form of
preliminary Prospectus) and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section
5, each Issuer hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the
case may be, and the managing underwriter or underwriters or agents,
if any, and dealers (if any), in connection with the offering and sale
of the Registrable Notes covered by or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or
any delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, to use its best efforts
to register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the
case may be, the managing underwriter or underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification)
of such Registrable Notes for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any
selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters, if any, reasonably request in writing,
provided that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to
perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h);
keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
provided that none of the Issuers shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section
3, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Notes to be sold, which certificates shall not bear any restrictive
legends
17
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and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use its best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the managing
underwriter or underwriters, if any, to consummate the disposition of
such Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which
case each of the Issuers will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of
such approvals.
(k) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi)
above, as promptly as reasonably practicable prepare and (subject to
Section 5(a) above) file with the SEC, at the joint and several
expense of each of the Issuers, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes being
sold thereunder or to the purchasers of the Exchange Notes to whom
such Prospectus will be delivered by a Participating Broker-Dealer,
any such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(l) Use their best efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case
may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount
of Registrable Notes covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with printed certificates for the Registrable Notes in a form eligible
for deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
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(n) In connection with an underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes and take all such other actions
as are reasonably requested by the managing underwriter(s), if any, in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes, and in such connection, (i) make such
representations and warranties to the managing underwriter or
underwriters on behalf of any underwriters, with respect to the
business of the Issuers and their respective subsidiaries and the
Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten
offerings of debt securities, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Issuers and updates
thereof in form and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the managing underwriter or
underwriters covering the matters customarily covered in opinions
requested in underwritten offerings of debt securities and such other
matters as may be reasonably requested by underwriters; (iii) obtain
"cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Issuers (and,
if necessary, any other independent certified public accountants of
any subsidiary of any of the Issuers or of any business acquired by
any of the Issuers for which financial statements and financial data
are, or are required to be, included in the Registration Statement),
addressed to the managing underwriter or underwriters on behalf of any
underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings of debt securities and such
other matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make available
for inspection by any selling Holder of such Registrable Notes being
sold, or each such Participating Broker-Dealer, as the case may be,
the managing underwriter or underwriters participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each
19
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such Participating Broker-Dealer, as the case may be (collectively,
the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Issuers and their respective
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Issuers and their respective subsidiaries to supply all
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the
Issuers determine, in good faith, to be confidential and any Records
which they notify the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is necessary to avoid or correct a material misstatement or material
omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or (iii) the information in such Records has
been made generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer or
underwriter will be required to agree that information obtained by it
as a result of such inspections shall be deemed confidential and shall
not be used by it as the basis for any market transactions in the
securities of the Issuers unless and until such is made generally
available to the public. Each selling Holder of such Registrable
Notes and each such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice
to the Issuers and allow the Issuers to undertake appropriate action
to prevent disclosure of the Records deemed confidential at their
expense.
(p) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a), as the
case may be, to be qualified under the TIA not later than the
effective date of the Exchange Offer or the first Registration
Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Notes, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best
efforts to cause such 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 such indenture to be so
qualified in a timely manner.
(q) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Notes are sold to underwriters
in a firm commitment or best efforts underwritten
20
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offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers, in a form
customary for underwritten offerings of debt securities similar to the
Notes, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, and which includes an opinion that (i)
each of the Issuers has duly authorized, executed and delivered the
Exchange Notes and Private Exchange Notes and the related indenture
and (ii) each of the Exchange Notes or the Private Exchange Notes, as
the case may be, and related indenture constitute a legal, valid and
binding obligation of each of the Issuers, enforceable against each of
the Issuers in accordance with its respective terms (with customary
exceptions).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuers (or to such other Person as directed by the Issuers) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Issuers shall xxxx, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being canceled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; and, in no event shall such Registrable Notes be marked
as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes
covered by any Registration Statement and the managing underwriter(s),
if any, participating in the disposition of such Registrable Notes and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD").
(u) Use their respective best efforts to take all other
steps necessary to effect the registration of the Registrable Notes
covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, as the
Issuers may, from time to time, reasonably request. The Issuers may exclude
from such registration the Registrable Notes of any seller or Participating
Broker-Dealer who unreasonably fails to furnish such information within a
reasonable time after receiving such request.
21
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Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi), such Holder
will forthwith discontinue disposition of such Registrable Notes covered by
such Registration Statement or Prospectus or Exchange Notes to be sold by such
Holder or Participating Broker-Dealer, as the case may be, until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k), or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto. In the event the Company
shall give any such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Notes covered by such Registration
Statement or Exchange Notes to be sold by such Holder or Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) or (y) the
Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of
or compliance with this Agreement by the Issuers shall be borne by the Issuers,
jointly and severally, whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation, (i)
all registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the Holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h), in the case of
Registrable Notes or Exchange Notes to be sold by a Participating Broker-Dealer
during the Applicable Period)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Notes or Exchange
Notes in a form eligible for deposit with The Depository Trust Company and of
printing Prospectuses if the printing of Prospectuses is reasonably requested
by the managing underwriter or underwriters, if any, or, in respect of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any
Registration Statement or of such Exchange Notes, as the case may be), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and fees and disbursements of special counsel for the
sellers of Registrable Notes (subject to the provisions of Section 6(b)), (v)
fees and disbursements of all independent certified public accountants referred
to in Section 5(n)(iii) (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or
22
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incident to such performance), (vi) rating agency fees, (vii) Securities Act
liability insurance, if the Issuers desire such insurance, (viii) fees and
expenses of the Trustee, (ix) fees and expenses of all other Persons retained
by the Issuers, (x) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Issuers
performing legal or accounting duties), (xi) the expense of any annual audit,
(xii) the fees and expenses incurred in connection with any listing of the
securities to be registered on any securities exchange and (xiii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures
and any other documents necessary in order to comply with this Agreement.
(b) In connection with any Shelf Registration hereunder,
the Issuers, jointly and severally, shall reimburse the Holders of the
Registrable Notes being registered in such registration for the fees and
disbursements, not to exceed $25,000, of not more than one counsel (in addition
to appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Registrable Notes to be included in such Registration
Statement and other reasonable out-of-pocket expenses of the Holders of
Registrable Notes incurred in connection with the registration of the
Registrable Notes.
7. Indemnification
(a) Each of the Issuers, jointly and severally, agrees to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, the officers and directors of each such person, and each person, if
any, who controls any such person within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act (each, a "Participant"),
from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
actually incurred in connection with any suit, action or proceeding or any
claim asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary Prospectus,
or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Issuers in writing by such
Participant expressly for use therein; provided that the foregoing indemnity
with respect to any preliminary Prospectus shall not inure to the benefit of
any Participant (or to the benefit of any person controlling such Participant)
from whom the person asserting any such losses, claims, damages or liabilities
purchased Registrable Notes or Exchange Notes if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
Prospectus is eliminated or remedied in the related Prospectus (as amended or
supplemented
23
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if the Issuers shall have furnished any amendments or supplements thereto) and
a copy of the related Prospectus (as so amended or supplemented) shall have
been furnished to such Participant at or prior to the sale of such Registrable
or Exchange Notes, as the case may be, to such person.
(b) Each Participant will be required to agree, severally
and not jointly, to indemnify and hold harmless the Issuers, their respective
directors and officers and each person who controls any of the Issuers within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Issuers to each
Participant, but only with reference to information relating to such
Participant furnished to the Issuers in writing by such Participant expressly
for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary Prospectus. The liability of any
Participant under this paragraph (b) shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes giving rise to
such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) of this Section 7, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain one
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
incurred by such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representations of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate law firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Participants and such control persons of Participants shall be designated
in writing by Participants who sold a majority in interest of Registrable Notes
sold by all such Participants and any such separate firm for the Issuers, their
directors, their officers and such control persons of the Issuers shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final
24
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judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses incurred by counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and
(ii) such Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Party is contesting, in good faith, the request for reimbursement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person, unless
such settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in paragraphs (a) and (b)
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Issuers on the one hand and the Participants on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Issuers on the one hand and the Participants on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuers or by the Participants and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The parties shall agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no
25
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event shall a Participant be required to contribute any amount in excess of the
amount by which proceeds received by such Participant from sales of Registrable
Notes or Exchange Notes exceeds the amount of any damages that such Participant
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
Each of the Issuers covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely manner and,
if at any time any of the Issuers is not required to file such reports, it
will, upon the request of any Holder of Registrable Notes, make publicly
available other information of a like nature so long as necessary to permit
sales pursuant to Rule 144 or Rule 144A. Each of the Issuers further covenants
that so long as any Registrable Notes remain outstanding to make available to
any Holder of Registrable Notes in connection with any sale thereof, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Registrable Notes pursuant to (a) such Rule 144A, or (b)
any similar rule or regulation hereafter adopted by the SEC.
9. 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 Holders of a majority in aggregate principal amount of
such Registrable Notes included in such offering and shall be reasonably
acceptable to the Issuers.
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 executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
26
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10. Miscellaneous
(a) Remedies. In the event of a breach by any Issuer of
any of its obligations under this Agreement, other than the occurrence of an
event which requires payment of Additional Interest, each Holder of Registrable
Notes, in addition to being entitled to exercise all rights provided herein, in
the Indenture or, in the case of the Initial Purchasers, in the Purchase
Agreement or granted by law, including recovery of damages, under this
Agreement.
(b) Enforcement. The Trustee shall be authorized to
enforce the provisions of this Agreement for the ratable benefit of the
Holders.
(c) No Inconsistent Agreements. None of the Issuers has,
as of the date hereof, and the Issuers shall not, after the date of this
Agreement, enter into any agreement with respect to any of its securities that
is inconsistent with the rights granted to the Holders of Registrable Notes in
this Agreement or otherwise conflicts with the provisions hereof. None of the
Issuers has entered or will enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back rights with respect to a
Registration Statement.
(d) Adjustments Affecting Registrable Notes. Neither the
Company nor the Guarantors shall, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes
in a registration undertaken pursuant to this Agreement.
(e) 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 Issuers have obtained the
written consent of Holders of at least a majority of the then outstanding
aggregate principal amount of Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders of
Registrable Notes whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Registrable Notes may be given by
Holders of at least a majority in aggregate principal amount of the Registrable
Notes being sold by such Holders pursuant to such Registration Statement,
provided that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(f) Notices. All notices and other communications
(including without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or telecopier:
27
-24-
(i) if to a Holder of Registrable Notes, at the most
current address given by the Trustee to the Company; and
(ii) if to an Issuer, Xxxxxx Communications Corporation,
000 Xxxxxxxxxx Xxxx Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Chief Financial Officer and General Counsel, with a copy to Holland &
Knight, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: (i) when delivered by hand, if personally delivered; (ii)
five business days after being deposited in the mail, postage prepaid, if
mailed; (iii) one business day after being timely delivered to a next-day air
courier; and (iv) when receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
(g) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes.
(h) 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth
28
-25-
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein and therein.
(m) Joint and Several Obligations. Unless otherwise
stated herein, each of the obligations of the Issuers under this Agreement
shall be joint and several obligations of each of them.
(n) Notes Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or its affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
29
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XXXXXX COMMUNICATIONS
CORPORATION
(a Delaware corporation)
By: /s/ Xxxxxx X. Tek
-------------------------------------
Name: Xxxxxx X. Tek
Title: Vice President and Treasurer
XXXXXX COMMUNICATIONS TELEVISION, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF FLORIDA, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS LP, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS MANAGEMENT
COMPANY
(a Florida corporation)
XXXXXX COMMUNICATIONS MARKETING, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS NETWORKS, INC.
(a Florida corporation)
XXXXXX OUTDOOR, INC.
(a Florida corporation)
XXXXXX NETWORKS, INC.
(a Florida corporation)
EXCEL MARKETING ENTERPRISES, INC.
(a Florida corporation)
30
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INFOMALL CABLE NETWORK, INC.
(a Delaware corporation)
INFOMALL TV NETWORK, INC.
(a Delaware corporation)
INFOMALL LOS ANGELES, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF AKRON-23, INC.
(a Florida corporation)
XXXXXX AKRON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF ATLANTA-14,
INC.
(a Florida corporation)
XXXXXX ATLANTA LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF BOSTON-60, INC.
(a Florida corporation)
XXXXXX BOSTON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF CLEVELAND-67,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF COOKEVILLE,
INC.
(a Florida corporation)
XXXXXX COOKEVILLE LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF DALLAS-68, INC.
(a Florida corporation)
31
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XXXXXX XXXXXX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF DAYTON-26,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF DENVER-59, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF FT. XXXXXX-34,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF HOUSTON-49,
INC.
(a Florida corporation)
XXXXXX HOUSTON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF LOS
ANGELES-30, INC.
(a Florida corporation)
XXXXXX LOS ANGELES LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF MIAMI-35, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF MILWAUKEE-55,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF
MINNEAPOLIS-45, INC.
(a Florida corporation)
XXXXXX MINNEAPOLIS LICENSE, INC.
(a Florida corporation)
32
-29-
XXXXXX COMMUNICATIONS OF NEW
LONDON-26, INC.
(a Florida corporation)
XXXXXX NEW LONDON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF NEW YORK-43,
INC.
(a Florida corporation)
XXXXXX NEW YORK LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF ORLANDO-56,
INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF
PHILADELPHIA-61, INC.
(a Florida corporation)
XXXXXX PHILADELPHIA LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF PHOENIX-13,
INC.
(a Florida corporation)
XXXXXX PHOENIX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF ST. LOUIS, INC.
(a Florida corporation)
XXXXXX ST. XXXXX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF SAN XXXX-65,
INC.
(a Florida corporation)
33
-30-
XXXXXX SAN XXXX LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF TAMPA-66, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF
WASHINGTON-60, INC.
(a Florida corporation)
XXXXXX WASHINGTON LICENSE, INC.
(a Florida corporation)
XXXXXX COMMUNICATIONS OF WEST PALM
BEACH-25, INC.
(a Florida corporation)
XXXXXX WEST PALM BEACH LICENSE, INC.
(a Florida corporation)
By: /s/ Xxxxxx X. Tek
-------------------------------------
Name: Xxxxxx X. Tek
Title: Vice President and Treasurer
XXXXXX BROADCASTING OF JACKSONVILLE,
LIMITED PARTNERSHIP
(a Florida partnership)
XXXXXX JACKSONVILLE LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX BROADCASTING OF MIAMI, LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX MIAMI LICENSE LIMITED PARTNERSHIP
(a Florida partnership)
34
-31-
XXXXXX BROADCASTING OF ORLANDO, LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX XXXXXXX LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX BROADCASTING OF TAMPA, LIMITED
PARTNERSHIP
(a Florida partnership)
XXXXXX TAMPA LICENSE LIMITED
PARTNERSHIP
(a Florida partnership)
By: Xxxxxx Communications of Florida,
Inc., their general partner
By: /s/ Xxxxxx X. Tek
-------------------------------------
Name: Xxxxxx X. Tek
Title: Vice President and Treasurer
WOOD GUNDY INC.
By: /s/ X.X. Xxxxxxx
--------------------
Name: X.X. Xxxxxxx
Title: Director
XXXXX XXXXXX INC.
By: /s/ M.E. Xxxxxxxx
--------------------
Name: M.E. Xxxxxxxx
Title: Director
