Exhibit 4.2
EXECUTION COPY
Xxxxxxxxx Inc.
$120,000,000
11.875% Senior Secured Notes due 2011
REGISTRATION RIGHTS AGREEMENT
Xxxxx 0, 0000
Xxxxxxxx Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
This Registration Rights Agreement (the "Agreement") is
entered into by and among Xxxxxxxxx Inc., a Canadian corporation (the
"Company"), Ravelston Management Inc., an Ontario corporation, and 504468 N.B.
Inc., a New Brunswick corporation (together, the "Note Guarantors"), and
Wachovia Securities, Inc. (the "Initial Purchaser").
This Agreement is entered into in connection with the purchase
agreement, dated March 5, 2003, by and among the Company, the Note Guarantors
and the Initial Purchaser (the "Purchase Agreement"), which provides for the
issuance and sale by the Company to the Initial Purchaser of $120,000,000
aggregate principal amount of the Company's 11.875% Senior Secured Notes due
2011 (the "Notes") to be unconditionally guaranteed on a senior secured basis by
the Note Guarantors (the "Note Guarantees"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company and the Note
Guarantors have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Interest" has the meaning set forth in Section 4
hereto.
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"Affiliate" means, with respect to any specified person, any
other person that, directly or indirectly, is in control of, is controlled by,
or is under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any
other day which is a legal holiday under the laws of New York, New York or is a
day on which banking institutions therein located are authorized or required by
law or other governmental action to close.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 2(c)(ii) hereof, (c) the Company's acceptance for exchange
of all Transfer Restricted Notes duly tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and (d) the delivery of Exchange Notes
by the Company to the registrar under the Indenture in the same aggregate
principal amount as the aggregate principal amount of Transfer Restricted Notes
duly tendered and not validly withdrawn by Holders thereof pursuant to the
Registered Exchange Offer and the delivery of such Exchange Notes to such
Holders. The term "Consummation" has a meaning correlative to the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Company,
guaranteed by the Note Guarantors, substantially identical in all material
respects to the Notes other than issue date (except that the Additional Interest
provisions and the transfer restrictions pertaining to the Notes will be
modified or eliminated, as appropriate), to be issued under the Indenture.
"Exchange Offer Registration Period" means the 180-day period
following the Consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement or during which the
Company has suspended the use of the Prospectus contained therein pursuant to
Section 2(d); provided, however, that in the event that all resales of Exchange
Notes (including, subject to the time periods set forth herein, any resales by
Participating Broker-Dealers) covered by such Exchange Offer Registration
Statement have been made, the Exchange Offer Registration Statement need not
thereafter remain continuously effective for such period.
"Exchange Offer Registration Statement" means a registration
statement of the Company and the Note Guarantors on an appropriate form under
the Act with respect to the
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Registered Exchange Offer, 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.
"Filing Date" has the meaning set forth in Section 2 hereto.
"Holder" means any holder from time to time of Transfer
Restricted Notes or Exchange Notes (including the Initial Purchaser).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, to be dated as of March 10, 2003, among the Company, the Note
Guarantors, The Ravelston Corporation Limited, Sugra Limited and Wachovia Trust
Company, National Association, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof.
"Initial Purchaser" has the meaning set forth in the preamble
hereto.
"Issue Date" means March 10, 2003.
"Losses" has the meaning set forth in Section 8(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Transfer Restricted Notes registered under a
Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Participating Broker-Dealer" means any Holder (which may
include the Initial Purchaser) that is a broker-dealer electing to exchange
Notes acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"Private Exchange Notes" has the meaning set forth in Section
2(g) hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act or any similar rule that may be adopted by
the Commission), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Transfer Restricted
Notes covered by such Registration Statement, and all amendments and supplements
to the Prospectus.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
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"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Notes.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Notes (including the Note Guarantees) pursuant to the provisions of
this Agreement, 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.
"Shelf Registration" means a registration of Transfer
Restricted Notes with the Commission effected pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(c) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company and the Note Guarantors filed pursuant to the
provisions of Section 3 hereof, which covers some or all of the Transfer
Restricted Notes, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, and which may be
in the format of an amendment to the Exchange Offer Registration Statement if
permitted by the Commission, 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.
"Transfer Restricted Notes" means each Note upon original
issuance thereof and at all times subsequent thereto, each Exchange Note as to
which Section 3(a)(iii) or Section 3(a)(iv) apply upon original issuance and at
all times subsequent thereto, until in the case of any such Note or Exchange
Note, as the case may be, the earliest to occur of (i) the date on which such
Note has been exchanged by a person other than a Participating Broker-Dealer for
an Exchange Note (other than with respect to an Exchange Note as to which
Section 3(a)(iii) or Section 3(a)(iv) apply), (ii) with respect to Exchange
Notes received by Participating Broker-Dealers in the Registered Exchange Offer,
the date on which such Exchange Note has been sold by such Participating
Broker-Dealer by means of the Prospectus contained in the Exchange Offer
Registration Statement, (iii) a Shelf Registration Statement covering such Note
or Exchange Note, as the case may be, has been declared effective by the
Commission and such Note or Exchange Note, as the case may be, has been disposed
of in accordance with such effective Shelf Registration Statement, (iv) the date
on which such Note or Exchange Note, as the case may be, can be sold without any
limitations under clauses (c), (e), (f) or (h) of Rule 144 under the Act or any
similar rule that may be adopted by the Commission, or (v) such Note or Exchange
Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the trustee with respect to the Notes or
Exchange Notes, as applicable, under the Indenture.
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2. Registered Exchange Offer; Resales of Exchange Notes by
Participating Broker-Dealers; Private Exchange. (a) The Company and the Note
Guarantors shall prepare and, not later than 110 days from the Issue Date (or,
if such 110th day is not a Business Day, by the first Business Day thereafter),
shall file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer (the date of such filing hereinafter
referred to as the "Filing Date"). The Company and the Note Guarantors shall use
their reasonable best efforts (i) to cause the Exchange Offer Registration
Statement to be declared effective under the Act within 240 days from the Issue
Date (or, if such 240th day is not a Business Day, by the first Business Day
thereafter), and (ii) to Consummate the Registered Exchange Offer within 30 days
from the date the Exchange Offer Registration Statement becomes effective.
(b) The objective of such Registered Exchange Offer is to
enable each Holder electing to exchange Transfer Restricted Notes for Exchange
Notes (assuming that such Holder (x) is not an "affiliate" of the Company or any
of the Note Guarantors within the meaning of the Act, (y) is not a broker-dealer
that acquired the Transfer Restricted Notes in a transaction other than as a
part of its market-making or other trading activities and (z) if such Holder is
not a broker-dealer, acquires the Exchange Notes in the ordinary course of such
Holder's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or intentions with any person to make a
distribution of the Exchange Notes) to resell such Exchange Notes from and after
their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States. Each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company and the
Note Guarantors that at the time of the Consummation of the Registered Exchange
Offer each of the items listed in subsections (x), (y) and (z) of this Section
2(b) is true.
(c) In connection with the Registered Exchange Offer, the
Company and the Note Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for
acceptance for not less than 30 days (or longer if required by
applicable law) after the date notice thereof is mailed to Holders;
(iii) permit Holders to withdraw tendered Notes at any time
prior to 5:00 p.m. New York City time on the last Business Day on which
the Registered Exchange Offer shall remain open;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan,
The City of New York; and
(v) comply in all material respects with all applicable
laws relating to the Registered Exchange Offer.
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(d) The Company and the Note Guarantors may suspend the use of
the Prospectus for a period not to exceed 30 days in any six-month period or an
aggregate of 45 days in any twelve-month period for valid business reasons (not
including avoidance of their obligations hereunder) to avoid premature public
disclosure of a pending corporate transaction, including pending acquisitions or
divestitures of assets, mergers and combinations and similar events; provided
that (i) the Company and the Note Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable; (ii) the period during which
the Registration Statement is required to be effective and usable shall be
extended by the number of days during which such Registration Statement was not
effective or usable pursuant to the foregoing provisions; and (iii) the
Additional Interest shall accrue on the Notes as provided in Section 4 hereof.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Company and the Note Guarantors shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all of the Notes
so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder Exchange Notes equal in principal amount to the Transfer
Restricted Notes of such Holder so accepted for exchange.
(f) The Initial Purchaser, the Company and the Note Guarantors
acknowledge that, pursuant to interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Participating Broker-Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Notes received by such Participating
Broker-Dealer pursuant to the Registered Exchange Offer in exchange for Transfer
Restricted Notes acquired for its own account as a result of market-making
activities or other trading activities. Accordingly, the Company and the Note
Guarantors will allow Participating Broker-Dealers and other persons, if any,
with similar prospectus delivery requirements to use the Prospectus contained in
the Exchange Offer Registration Statement during the Exchange Offer Registration
Period in connection with the resale of such Exchange Notes and shall:
(i) include the information set forth in (a) Annex A
hereto on the cover of the Prospectus forming a part of the Exchange
Offer Registration Statement; (b) Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer; (c) Annex C hereto in the
plan of distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and (d) Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer; and
(ii) use reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective (subject to Section
2(d)) under the Act during the Exchange Offer Registration Period for
delivery of the Prospectus included therein by
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Participating Broker-Dealers in connection with sales of Exchange Notes
received pursuant to the Registered Exchange Offer, as contemplated by
Section 5(h) below.
(g) In the event that the Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Transfer Restricted Notes constituting any portion of an unsold
allotment, upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial Purchaser,
the Company and the Note Guarantors shall issue and deliver to the Initial
Purchaser, or to the party purchasing Transfer Restricted Notes registered under
the Shelf Registration Statement from the Initial Purchaser, in exchange for
such Transfer Restricted Notes, a like principal amount of Exchange Notes to the
extent permitted by applicable law (the "Private Exchange Notes"). The Company
and the Note Guarantors shall use their reasonable best efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Exchange Notes as
for Exchange Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) the Company and the Note
Guarantors are not permitted to file the Exchange Offer Registration Statement
or to Consummate the Registered Exchange Offer because the Registered Exchange
Offer is not permitted by applicable law or Commission policy, (ii) for any
other reason the Registered Exchange Offer is not Consummated within 30 days (or
if such 30th day is not a Business Day, by the first Business Day thereafter) of
the date the Exchange Offer Registration Statement has become effective, (iii)
the Initial Purchaser so requests with respect to Notes which have not been
resold acquired by it directly from the Company and the Note Guarantors on or
prior to the 30th day (or if such 30th day is not a Business Day, by the first
Business Day thereafter) following the Consummation of the Registered Exchange
Offer, (iv) any Holder notifies the Company and the Note Guarantors on or prior
to the 30th day (or if such 30th day is not a Business Day, by the first
Business Day thereafter) following the Consummation of the Registered Exchange
Offer that (A) such Holder is not eligible to participate in the Registered
Exchange Offer, due to applicable law or Commission policy, (B) the Exchange
Notes such Holder would receive would not be freely tradable, (C) such Holder is
a Participating Broker-Dealer that cannot publicly resell the Exchange Notes
that it acquires in the Registered Exchange Offer without delivering a
Prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for resales following the completion
of the Registered Exchange Offer, or (D) the Holder is a broker-dealer and owns
Notes it has not exchanged and that it acquired directly from the Company, one
of its Affiliates or any Note Guarantor, or (v) in the case where the Initial
Purchaser participates in the Registered Exchange Offer or acquires Private
Exchange Notes pursuant to Section 2(g) hereof, the Initial Purchaser does not
receive freely tradable Exchange Notes in exchange for Notes constituting any
portion of an unsold allotment and the Initial Purchaser notifies the Company
and the Note Guarantors on or prior to the 30th day following the Consummation
of the Registered Exchange Offer (it being understood that, for purposes of this
Section 3, (x) the requirement that the Initial Purchaser deliver a Prospectus
containing the information required by Item 9.B (Plan of Distribution) and/or
Item 9.D (Selling Shareholders) of Form 20-F under the Act in connection with
sales of Exchange Notes acquired in exchange for such Transfer Restricted Notes
shall result in such Exchange Notes being not "freely tradable" and (y) the
requirement that a Participating Broker-Dealer deliver a Prospectus in
connection with sales of Exchange Notes acquired in the Registered Exchange
Offer in exchange for Transfer Restricted Notes acquired as a result of
market-making activities or other
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trading activities shall not result in such Exchange Notes being not "freely
tradable"), the following provisions shall apply:
(b) The Company and the Note Guarantors shall use their
reasonable best efforts to prepare and file with the Commission a Shelf
Registration Statement prior to the 30th day (or if such 30th day is not a
Business Day, by the first Business Day thereafter) following the earliest to
occur of (i) the date on which the Company and the Note Guarantors determine
that they are not permitted to file the Exchange Offer Registration Statement or
to Consummate the Exchange Offer; (ii) 30 days (or if such 30th day is not a
Business Day, by the first Business Day thereafter) after the Exchange Offer
Registration Statement has been declared effective if the Registered Exchange
Offer has not been Consummated by such date and (iii) the date notice is given
pursuant to Section (a)(iii), (iv) or (v) above (or if either such 30th day is
not a Business Day, by the first Business Day thereafter) and shall use their
reasonable best efforts to cause the Shelf Registration Statement to be declared
effective by the Commission within 90 days thereafter (or if such 90th day is
not a Business Day, by the first Business Day thereafter). With respect to
Exchange Notes received by the Initial Purchaser in exchange for Notes
constituting any portion of an unsold allotment, the Company and the Note
Guarantors may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Form 20-F Item 9.B (Plan of
Distribution) and/or Item 9.D (Selling Shareholders), as applicable, in
satisfaction of their obligations under this paragraph (b) with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(c) The Company and the Note Guarantors shall use their
reasonable best efforts to keep such Shelf Registration Statement continuously
effective (subject to Section 3(d)) in order to permit the Prospectus forming a
part thereof to be usable by Holders until the earliest of (i) such time as the
Notes or Exchange Notes covered by the Shelf Registration Statement can be sold
without any limitations under clauses (c), (e), (f) and (h) of Rule 144 or
similar rule adopted by the Commission, (ii) two years from the date the Shelf
Registration Statement has been declared effective exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Shelf Registration Statement or during which the Company has suspended the
use of the Prospectus contained therein pursuant to Section 3(d) and (iii) such
date as of which all the Transfer Restricted Notes have been sold pursuant to
the Shelf Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company and the Note Guarantors shall be
deemed not to have used their reasonable best efforts to keep the Shelf
Registration Statement effective during the Shelf Registration Period if they
voluntarily take any action that would result in Holders of Transfer Restricted
Notes covered thereby not being able to offer and sell such notes during that
period, unless such action is (x) required by applicable law or (y) pursuant to
Section 3(d) hereof, and, in either case, so long as the Company and the Note
Guarantors promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable.
(d) The Company and the Note Guarantors may suspend the use of
the Prospectus for a period not to exceed 30 days in any six-month period or an
aggregate of 45 days in any twelve-month period for valid business reasons (not
including avoidance of their obligations hereunder) to avoid premature public
disclosure of a pending corporate transaction,
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including pending acquisitions or divestitures of assets, mergers and
combinations and similar events; provided that (i) the Company and the Note
Guarantors promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable; (ii) the period during which the Registration Statement
is required to be effective and usable shall be extended by the number of days
during which such Registration Statement was not effective or usable pursuant to
the foregoing provisions; and (iii) the Additional Interest shall accrue on the
Notes as provided in Section 4 hereof.
(e) No Holder of Transfer Restricted Notes may include any of
its Transfer Restricted Notes in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Company and the
Note Guarantors in writing, within 20 days after receipt of a request therefor,
such information as the Company and the Note Guarantors may reasonably request
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted Notes
shall be entitled to Additional Interest pursuant to Section 4 hereof unless and
until such Holder shall have used its reasonable best efforts to provide all
such reasonably requested information. Each Holder of Transfer Restricted Notes
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company and the Note Guarantors all information required to be
disclosed in order to make the information previously furnished to the Company
and the Note Guarantors by such Holder not misleading.
4. Additional Interest.
(a) The parties hereto agree that Holders of Transfer
Restricted Notes will suffer damages if the Company or the Note Guarantors fail
to perform their obligations under Section 2 or Section 3 hereof and that it
would not be feasible to ascertain the extent of such damages. Accordingly, in
the event that (i) the applicable Registration Statement is not filed with the
Commission on or prior to the date specified herein for such filing, (ii) the
applicable Registration Statement has not been declared effective by the
Commission on or prior to the date specified herein for such effectiveness after
such obligation arises, (iii) if the Registered Exchange Offer is required to be
Consummated hereunder, the Registered Exchange Offer has not been Consummated by
the Company and the Note Guarantors within the time period set forth in Section
2(a) hereof, (iv) prior to the end of the Exchange Offer Registration Period or
the Shelf Registration Period, the Commission shall have issued a stop order
suspending the effectiveness of the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, or proceedings have been
initiated with respect to the Registration Statement under Section 8(d) or 8(e)
of the Act, or (v) the Company and the Note Guarantors shall have initiated a
suspension period pursuant to Section 2(d) or 3(d) (each such event referred to
in clauses (i) through (v), a "Registration Default"), then additional interest
with respect to the Transfer Restricted Notes ("Additional Interest") will
accrue with respect to the first 90-day period immediately following the
occurrence of such Registration Default in an amount equal to 0.5% per annum per
$1,000 principal amount of such Notes and will increase by an additional 0.5%
per annum per $1,000 principal amount of such Notes for each subsequent 90-day
period until such Registration Default has been cured, up to an aggregate
maximum amount of Additional Interest of 1.0% per annum per $1,000 principal
amount of Notes for all Registration Defaults. Following the cure of a
Registration Default, the accrual of Additional Interest with respect to such
Registration Default will cease and upon the cure of all Registration Defaults
the
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accrual of all Additional Interest will cease. Notwithstanding anything to the
contrary in this Section 4(a), the Company and the Note Guarantors shall not be
required to pay Additional Interest to a Holder of Transfer Restricted Notes if
such Holder failed to comply with its obligations to make the representations
set forth in the second sentence of Section 2(b).
(b) The Company shall notify the Trustee and paying agent
under the Indenture (or the trustee and paying agent under such other indenture
under which any Transfer Restricted Notes are issued) immediately upon the
happening of each and every Registration Default. The Company and the Note
Guarantors shall pay the Additional Interest due on the Transfer Restricted
Notes by depositing with the paying agent (which shall not be the Company or the
Note Guarantors for these purposes) for the Transfer Restricted Notes, in trust,
for the benefit of the Holders thereof, prior to 11:00 a.m. on the next interest
payment date specified in the Indenture (or such other indenture), sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each interest payment date specified by the Indenture (or
such other indenture) to the record holders entitled to receive the interest
payment to be made on such date. Each obligation to pay Additional Interest
shall be deemed to accrue from and include the date of the applicable
Registration Default to, but excluding, the relevant interest payment date.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes a reasonable estimate of the damages
that will be suffered by holders of Transfer Restricted Notes by reason of the
happening of any Registration Default and are intended to constitute the sole
remedy for damages that will be suffered by the Holders of the Transfer
Restricted Notes by reason of any of the failures listed in Section 4(a).
(d) All of the Company's and the Note Guarantors' obligations
set forth in this Section 4 which are outstanding with respect to any Transfer
Restricted Note at the time such Note ceases to be covered by an effective
Registration Statement shall survive until such time as all such obligations
with respect to such Note have been satisfied in full (notwithstanding
termination of this Agreement).
5. Registration Procedures. In connection with any Exchange
Offer Registration Statement, and, to the extent applicable, any Shelf
Registration Statement the following provisions shall apply:
(a) The Company and the Note Guarantors shall furnish to the
Initial Purchaser, prior to the filing thereof with the Commission, a copy of
any Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall reflect in each
such document, when so filed with the Commission, such comments as the Initial
Purchaser reasonably may propose in a timely fashion.
(b) The Company and the Note Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto
and any Prospectus contained therein and any amendment or supplement
thereto complies in all material respects with the Act;
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(ii) any 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 Registration
Statement, including any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
provided that no representation or agreement is made hereby with respect to
information with respect to the Initial Purchaser, any underwriter or any Holder
required to be included in any Registration Statement or Prospectus pursuant to
the Act or provided by the Initial Purchaser, any Holder or any underwriter
specifically for inclusion in any Registration Statement or Prospectus.
(c) (1) The Company and the Note Guarantors shall advise the
Initial Purchaser and, in the case of a Shelf Registration Statement, the
Holders of Transfer Restricted Notes covered thereby, and, if requested by the
Initial Purchaser or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become effective;
and
(ii) of any request by the Commission for amendments or '
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company and the Note Guarantors shall advise the
Initial Purchaser and, in the case of a Shelf Registration Statement, the
Holders of Transfer Restricted Notes covered thereby, and, in the case of an
Exchange Offer Registration Statement, any Participating Broker-Dealer that has
provided in writing to the Company a telephone or facsimile number and address
for notices, and, if requested by the Initial Purchaser or any such Holder or
Participating Broker-Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company or any Note Guarantor
of any notification with respect to the suspension of the qualification
of the Transfer Restricted Notes included in any Registration Statement
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the Prospectus
so that, as of such date, the statements therein are not misleading and
do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light
11
of the circumstances under which they were made) not misleading (which
advice shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(d) The Company and the Note Guarantors shall use their
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible time.
(e) The Company and the Note Guarantors shall furnish to each
Holder of Transfer Restricted Notes included within the coverage of any Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those incorporated by reference).
(f) The Company and the Note Guarantors shall, during the
Shelf Registration Period, deliver to each Holder of Transfer Restricted Notes
included within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including any preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Company and the Note
Guarantors consent to the use of the Prospectus (including any preliminary
Prospectus) or any amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Notes in connection with the offering and sale of
the Transfer Restricted Notes covered by the Prospectus or any amendment or
supplement thereto.
(g) The Company and the Note Guarantors shall furnish to each
Participating Broker-Dealer that so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, any documents
incorporated by reference therein and, if the Participating Broker-Dealer so
requests in writing, all exhibits thereto (including those incorporated by
reference).
(h) The Company and the Note Guarantors shall, during the
Exchange Offer Registration Period and pursuant to the requirements of the Act
for the resale of the Exchange Notes during the period in which a prospectus is
required to be delivered under the Act (including any Commission no-action
letters relating to the Registered Exchange Offer), deliver to each
Participating Broker-Dealer, without charge, as many copies of the Prospectus
(including any preliminary Prospectus) included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Participating Broker-Dealer may reasonably request; and the Company and the Note
Guarantors consent to the use of the Prospectus (including any preliminary
Prospectus) or any amendment or supplement thereto by any such Participating
Broker-Dealer in connection with the offering and sale of the Exchange Notes, as
provided in Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other
offering of Transfer Restricted Notes pursuant to any Registration Statement,
the Company and the Note Guarantors shall use reasonable best efforts to
register, qualify or cooperate with the Holders of Transfer Restricted Notes
included therein and their respective counsel in connection with the
registration or qualification of such Transfer Restricted Notes for offer and
sale under the securities or blue
12
sky laws of such states as any such Holders reasonably request in writing and
do any and all other acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the Transfer Restricted Notes covered by such
Registration Statement; provided, however, neither the Company nor the Note
Guarantors will be required to qualify generally to do business in any
jurisdiction in which it is not then so qualified, to file any general consent
to service of process or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where it is not then
so subject.
(j) The Company and the Note Guarantors shall cooperate with
the Holders to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in denominations authorized by the
Indenture and registered in such names as Holders may request prior to sales of
Transfer Restricted Notes pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by Section
2(d), 3(d) or paragraph (c)(2)(iii) of this Section 5, the Company and the Note
Guarantors shall promptly prepare and file a post-effective amendment to any
Registration Statement or an amendment or supplement to the related Prospectus
or any other required document so that, as thereafter delivered to purchasers of
the Transfer Restricted Notes included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) The Company and the Note Guarantors shall use their
reasonable best efforts to cause The Depository Trust Company ("DTC") on the
first Business Day following the effective date of any Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any existing
CUSIP number assigned to the Transfer Restricted Notes or Exchange Notes, as the
case may be, any designation indicating that such notes are "restricted
securities," which efforts shall include delivery to DTC of a letter executed by
the Company substantially in the form of Annex E hereto and (ii) any other stop
or restriction on DTC's system with respect to the Transfer Restricted Notes or
Exchange Notes, as the case may be. In the event the Company and the Note
Guarantors are unable to cause DTC to take actions described in the immediately
preceding sentence, the Company and the Note Guarantors shall take such actions
as the Initial Purchaser may reasonably request to provide, as soon as
practicable, a new CUSIP (if not already obtained) number for the Transfer
Restricted Notes or Exchange Notes registered under such Registration Statement
and to cause such CUSIP number to be assigned to the Transfer Restricted Notes
or Exchange Notes (or to the maximum aggregate principal amount of the
securities to which such number may be assigned).
(m) The Company and the Note Guarantors shall use their
reasonable best efforts to comply with all applicable rules and regulations of
the Commission and shall make generally available to the security holders as
soon as practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section 11(a) of
the Act and Rule 158 promulgated thereunder.
(n) The Company and the Note Guarantors shall use reasonable
best efforts to cause the Indenture to be qualified under the Trust Indenture
Act in a timely manner.
13
(o) The Company and the Note Guarantors may require each
Holder of Transfer Restricted Notes to be sold pursuant to any Shelf
Registration Statement to furnish to the Company and the Note Guarantors such
information regarding the Holder and the distribution of such Transfer
Restricted Notes as may, from time to time, be reasonably required by the Act,
and the obligations of the Company and the Note Guarantors to any Holder
hereunder shall be expressly conditioned on the compliance of such Holder with
such request.
(p) The Company and the Note Guarantors shall, if requested,
promptly incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement (i) such information as the Majority Holders
provide or, if the Transfer Restricted Notes are being sold in an underwritten
offering, as the Managing Underwriters and the Majority Holders reasonably agree
should be included therein and, in either case, provided to the Company or the
Note Guarantors in writing for inclusion in the Shelf Registration Statement, or
Prospectus, and (ii) such information as a Holder may provide from time to time
to the Company or the Note Guarantors in writing for inclusion in a Prospectus
or any Shelf Registration Statement, in the case of clause (i) or (ii) above,
concerning such Holder and/or underwriter and the distribution of such Holder's
Transfer Restricted Notes and, in either case, shall make all required filings
of such Prospectus supplement or post-effective amendment as soon as practicable
after being notified in writing of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Company and the Note Guarantors shall enter into such agreements (including
underwriting agreements) and take all other customary and appropriate actions as
may be reasonably requested in order to expedite or facilitate the registration
or the disposition of any Transfer Restricted Notes, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than those
set forth in Section 8 (or such other provisions and procedures reasonably
acceptable to the Majority Holders and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to Section 8).
(r) In the case of any Shelf Registration Statement, the
Company and the Note Guarantors shall:
(i) make reasonably available for inspection by the
Holders of Transfer Restricted Notes to be registered thereunder, any
Managing Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such Managing Underwriter, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and any of its subsidiaries;
(ii) cause the Company's and the Note Guarantors'
officers, directors and employees to supply all relevant information
reasonably requested by the Holders or any such Managing Underwriter,
attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing
by the Company and the Note Guarantors as confidential at the time of
delivery of such information shall be kept
14
confidential by the Holders or any such Managing Underwriter, attorney,
accountant or agent, unless (x) disclosure thereof is made in
connection with a court proceeding or required by law; provided that
each Holder and any such Managing Underwriter, attorney, accountant or
agent will, upon learning that disclosure of such information is sought
in a court proceeding or required by law, give notice to the Company
and the Note Guarantors with enough time to allow the Company and the
Note Guarantors to undertake appropriate action to prevent disclosure
at the Company's and the Note Guarantors' sole expense, or (y) such
information has previously been made or becomes available to the public
generally through the Company, the Note Guarantors or through a third
party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
Holders of Transfer Restricted Notes registered thereunder and the
Managing Underwriters, if any, in form, substance and scope as are
customarily made by the Company and the Note Guarantors to Managing
Underwriters and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the
Note Guarantors and updates thereof (which counsel and opinions, in
form, scope and substance, shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and the
Managing Underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Holders and Managing
Underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company and
the Note Guarantors (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of the Transfer Restricted
Notes covered by such Shelf Registration Statement (provided such
Holder furnishes the accountants with such representations as the
accountants customarily require in similar situations) and the Managing
Underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Note Guarantors.
The foregoing actions set forth in this Section 5(r) shall be
performed at (i) the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (ii) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
15
(s) The Company and the Note Guarantors shall, if and to the
extent required under the Act and/or the Trust Indenture Act and the rules and
regulations thereunder in order to register the Note Guarantees under the Act
and qualify the Indenture under the Trust Indenture Act, cause each guarantor,
if any, to sign any Registration Statement and take all other action necessary
to register the Note Guarantees under the applicable Registration Statement.
6. Registration Expenses. The Company and the Note Guarantors
shall bear all reasonable fees and expenses (including the reasonable fees and
expenses, if any, of Shearman & Sterling, counsel for the Initial Purchaser,
incurred in connection with the Registered Exchange Offer) incurred in
connection with the performance of their obligations under Sections 2, 3, 4 and
5 hereof (other than brokers', dealers' and underwriters' discounts and
commissions and brokers', dealers' and underwriters' counsel fees) and, in
connection with the Shelf Registration Statement, shall reimburse the Holders
for the reasonable fees and disbursements of one firm or counsel designated by
the Majority Holders to act as counsel for the Holders in connection therewith.
7. Rules 144 and 144A. The Company and the Note Guarantors
shall use reasonable best efforts to file the reports required to be filed by
them under the Act and the Exchange Act in a timely manner and, if at any time
the Company or the Note Guarantors are not required to file such reports, the
Company will, upon the request of any Holder of Transfer Restricted Notes, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A (or any successor rule adopted
by the Commission). The Company covenants that it will take such further action
as any Holder of Transfer Restricted Notes may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4) if applicable). The Company will provide a copy
of this Agreement to prospective purchasers of Transfer Restricted Notes
identified to the Company by the Initial Purchaser upon request. Upon the
request of any Holder of Transfer Restricted Notes, the Company shall deliver to
such Holder a written statement as to whether it has complied with such
requirements.
8. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the
Company and the Note Guarantors, jointly and severally, agree to
indemnify and hold harmless each Holder of Transfer Restricted Notes
covered thereby, the directors, officers, employees and agents of each
such Holder and each person who controls any such Holder within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment
thereof, in any preliminary Prospectus or Prospectus or in any
amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or
16
necessary to make the statements therein not misleading, and agree to
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company and the Note Guarantors
will not be liable in any case to the extent that any such loss, claim,
damage or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information relating to the Holder furnished to the Company and the
Note Guarantors by or on behalf of any such Holder specifically for
inclusion therein, (B) use of a Registration Statement or the related
Prospectus during a period when a stop order has been issued in respect
of such Registration Statement or any proceedings for that purpose have
been initiated or use of a Prospectus when use of such Prospectus has
been suspended pursuant to Section 2(d), 3(d) or 5(c)(2); provided,
further, in each case, that Holders received prior notice of such stop
order, initiation of proceedings or suspension or (C) if the Holder is
required to but does not deliver a Prospectus or the then-current
Prospectus. This indemnity agreement will be in addition to any
liability which the Company and the Note Guarantors may otherwise have.
(ii) The Company and the Note Guarantors also agree to
indemnify or contribute to Losses, as provided in Section 8(d), of any
Managing Underwriters of Transfer Restricted Notes registered under a
Registration Statement, their officers and directors and each person
who controls such Managing Underwriters on substantially the same basis
as that of the indemnification of the selling Holders provided in this
Section 8(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in
Section 5(q) hereof.
(b) Each Holder of Transfer Restricted Notes covered by a
Registration Statement severally agrees to indemnify and hold harmless the
Company and the Note Guarantors and their respective directors, officers,
employees and agents and each person who controls either of the Company or the
Note Guarantors within the meaning of either the Act or the Exchange Act to the
same extent as the foregoing indemnity from the Company and the Note Guarantors
to each such Holder, but only with reference to written information relating to
such Holder furnished to the Company and the Note Guarantors by or on behalf of
such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party
17
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. The indemnified party will not settle or compromise or
consent to the entry of judgment with respect to any such action without the
consent of the indemnifying party (which consent shall not be unreasonably
withheld). Notwithstanding the indemnifying party's election to appoint counsel
to represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded,
based on the advice of outside counsel, that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall have
authorized the indemnified party to employ separate counsel at the expense of
the indemnifying party; provided further, that the indemnifying party shall not
be responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) representing all the indemnified
parties under paragraph (a) or paragraph (b) above. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other indemnified
person, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Benefits received by the Company
18
and the Note Guarantors shall be deemed to be equal to the sum of (x) the
aggregate principal amount of the Notes and (y) the total amount of Additional
Interest which the Company and the Note Guarantors were not required to pay as a
result of registering the Transfer Restricted Notes covered by the Registration
Statement which resulted in such Losses. Benefits received by any Holder shall
be deemed to be equal to the value of receiving Transfer Restricted Notes
registered under the Act. Benefits received by any Managing Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 8(d), the Holders of the Transfer Restricted Notes shall in no case be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Transfer Restricted Notes
pursuant to a Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission and in no case shall any
Managing Underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the Transfer Restricted Notes purchased by
such Managing Underwriter under the Registration Statement which resulted in
such Losses. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an indemnified party within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such indemnified
party shall have the same rights to contribution as such indemnified party, and
each person who controls the Company or the Note Guarantors within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of the Company or the Note Guarantors shall have the same rights to
contribution as the Company and the Note Guarantors, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 8 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company, the Note Guarantors or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive the sale
by a Holder of Transfer Restricted Notes covered by a Registration Statement.
9. Underwritten Registrations.
If any of the Transfer Restricted Notes covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the Managing
Underwriter that will administer the offering will be selected by the Majority
Holders of such Transfer Restricted Notes included in such offering, subject to
the consent of the Company not to be unreasonably
19
withheld; it being expressly agreed that Wachovia Securities, Inc. is an
acceptable Managing Underwriter to the Company and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Notes on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Note
Guarantors have not, as of the date hereof, entered into nor shall they, on or
after the date hereof, enter into any agreement that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Note Guarantors
have obtained the written consent of the Majority Holders. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Transfer Restricted Notes are being sold pursuant to a Shelf Registration
Statement or whose Notes are being exchanged pursuant to an Exchange Offer
Registration Statement, as the case may be, and which does not directly or
indirectly affect the rights of other Holders may be given by such Holders,
determined on the basis of Notes being sold rather than registered.
Notwithstanding any of the foregoing, no amendment, modification, supplement,
waiver or consents to any departure from the provisions of Section 8 hereof
shall be effective as against any Holder of Transfer Restricted Notes unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchaser, as follows:
Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: High Yield Origination
(ii) if to any other Holder, at the most current address
given by such Holder to the Company and the Note Guarantors in
accordance with the provisions of this Section 10(c), which address
initially is, with respect to each Holder, the address of such Holder
20
maintained by the registrar under the Indenture, with a copy in like
manner to the Initial Purchaser; and
(iii) if to the Company or the Note Guarantors, as follows:
Xxxxxxxxx Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Attention: Chief Financial Officer
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail, telex or telecopier.
The Company and the Note Guarantors by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
(d) 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 the need for an express assignment or any consent by
the Company or the Note Guarantors thereto, subsequent Holders. The Company and
the Note Guarantors hereby agree to extend the benefits of this Agreement to any
Holder and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law and Consent to Jurisdiction. This agreement
shall be governed by and construed in accordance with the laws of the State of
New York. The Company and the Note Guarantors (x) submit to the nonexclusive
jurisdiction of the courts of the State of New York and of the United States
sitting in the Borough of Manhattan in respect of any action, claim or
proceeding ("Proceeding") arising out of or relating to this Agreement or the
transactions contemplated hereby, (y) irrevocably waive, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to
the laying of venue of any Proceeding in the Supreme Court of the State of New
York, County of New York, or the United States District Court for the Southern
District of New York, and any claim that any Proceeding in any such court has
been brought in an inconvenient forum, and (z) agree that any service of process
or other legal summons in connection with any Proceeding may be served on it by
mailing a copy thereof by registered mail, or a form of mail substantially
equivalent thereto, postage prepaid, addressed to the served party at its
address as provided for in Section 10(c). Nothing in this section shall affect
the right of the parties to serve process in any other manner permitted by law.
21
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Transfer
Restricted Notes or Exchange Notes is required hereunder, Transfer Restricted
Notes or Exchange Notes held by the Company, the Note Guarantors or any of their
respective Affiliates (other than subsequent Holders of Transfer Restricted
Notes or Exchange Notes if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(j) Agent for Service of Process. Each of the Company and the
Note Guarantors agrees that, prior to the Issue Date, it will have appointed
Xxxx Xxxxx at Xxxxxxxxx International Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000 as its authorized agent in New York City (the "Authorized Agent",
which term, as used herein, includes any successor in such capacity) upon whom
process may be served in any such action, suit or proceeding arising out of or
relating to this Agreement or any of the transactions contemplated hereby which
may be instituted in any federal or state court in the State of New York by the
Initial Purchaser or Holders, as the case may be.
(k) Judgment Currency. If for the purpose of obtaining
judgment in any court or for the purpose of determining, pursuant to the
obligations of the Company or any Note Guarantor, any amounts owing hereunder,
it is necessary to convert an amount due hereunder in U.S. dollars into a
currency other than U.S. dollars (the "Judgment Currency"), the rate of exchange
applied shall be that at which, in accordance with normal banking procedures,
the Initial Purchaser or Holder, as the case may be, could purchase in the New
York foreign exchange market U.S. dollars with the Judgment Currency on the date
that is two business days preceding that on which judgment is given or any other
payment is due hereunder. Each of the Company and the Note Guarantors agrees
that its respective obligation in respect of any U.S. dollars due from it to the
Initial Purchaser or Holder, as the case may be, hereunder shall,
notwithstanding any judgment or payment in the Judgment Currency, be discharged
only to the extent that, on the business day following the date the Initial
Purchaser or Holder receives payment of any sum so adjudged or owing to be due
hereunder in the Judgment Currency, the Initial Purchaser or Holder may, in
accordance with normal banking procedures, purchase in the New York foreign
exchange market U.S. dollars with the amount of the Judgment Currency so paid;
and if the amount of U.S. dollars so purchased or that could have been so
purchased is less than the amount originally due in U.S. dollars, each of the
Company and the Note Guarantors agrees as a separate obligation and
notwithstanding any such payment or judgment to indemnify the Initial Purchaser
or Holder, as the case may be, against such loss. The term "rate of exchange" in
this paragraph means the spot rate at which the Initial Purchaser or Holder, as
the case may be, in accordance with normal banking practices is able on the
relevant date to purchase U.S. dollars with the Judgment Currency and includes
any premium and costs of exchange payable in connection with such purchase.
22
(l) Waiver of Immunity. To the extent that the Company, any
Note Guarantor or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from (i) any legal action, suit or
proceeding, (ii) setoff or counterclaim, (iii) the jurisdiction of any court,
(iv) service of process, (v) attachment upon or prior to judgment, (vi)
attachment in aid of execution of judgment, (vii) execution of judgment, or
(viii) other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which any action, suit or
proceeding may at any time be commenced with respect to its obligations,
liabilities or any other matter under or arising out of or relating to this
Agreement, each of the Company and the Note Guarantors, to the fullest extent it
may effectively do so under applicable law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
23
Please confirm that the foregoing correctly sets forth the
agreement between and among the Company, the Note Guarantors and the Initial
Purchaser.
Very truly yours,
XXXXXXXXX INC.
By: /s/ X. X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Director
RAVELSTON MANAGEMENT INC.
By: /s/ X. X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Director
504468 N.B. INC.
By: /s/ X. X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President and
Director
The foregoing Agreement is hereby
acknowledged and accepted as of
the date first written above.
WACHOVIA SECURITIES, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
24
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer during the Exchange Offer
Registration Period in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities. The Company and
the Note Guarantors have agreed that, during the Exchange Offer Registration
Period, it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
A-1
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes during the Exchange Offer Registration Period. See "Plan of Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Notes during
the Exchange Offer Registration Period. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired as a result of market-making activities or other trading
activities. The Company and the Note Guarantors have agreed that, during the
Exchange Offer Registration Period, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
The Company and the Note Guarantors will not receive any
proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes
received by broker-dealers for their own account pursuant to the Registered
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit from any such resale
of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
During the Exchange Offer Registration Period, the Company and
the Note Guarantors will promptly send additional copies of this Prospectus and
any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Company and the Note
Guarantors have agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the holders of the Notes) other
than dealers' and brokers' discounts, commissions and counsel fees and will
indemnify the holders of the Notes (including any broker-dealers) against
certain liabilities, including liabilities under the Act.
[If applicable, add information required by Item 9.B (Plan of
Distribution) and Item 9.D (Selling Shareholders) of Form 20-F.]
C-1
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
[ ]
Name: ________________________________________
Address: _____________________________________
_____________________________________
The undersigned represents that it is not an Affiliate of the
Company or any of the Note Guarantors, that any Exchange Notes to be received by
it will be acquired in the ordinary course of business and that at the time of
the commencement of the Registered Exchange Offer it had no arrangement with any
person to participate in a distribution of the Exchange Notes.
In addition, 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 Notes, it
represents that the 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 in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-1
ANNEX E
FORM OF LETTER TO BE PROVIDED BY THE COMPANY TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 11.875% Senior Secured Notes due 2011 (the "Notes")
of Xxxxxxxxx Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form F-__ under the
Securities Act of 1933, as amended, with regard to all of the Notes referenced
above. Accordingly, there is no longer any restriction as to whom such Notes may
be sold and [any restrictions on the CUSIP designation are no longer appropriate
and may be removed] [the new CUSIP number for the Notes provided should be
used]. I understand that upon receipt of this letter, DTC will remove any stop
or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
Very truly yours,
XXXXXXXXX INC.
By: _______________
Authorized Officer
E-1
