EXHIBIT 4.1
CONFORMED COPY
XXXXXX AUTOMOTIVE GROUP, INC.
$250,000,000 9% SENIOR SUBORDINATED NOTES DUE 2012
UNCONDITIONALLY GUARANTEED AS TO THE
PAYMENT OF PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST BY THE
SUBSIDIARY GUARANTORS
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 5, 2002
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Xxxxx Xxxxxx Inc.
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Automotive Group, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 250,000,000 9%
Senior Subordinated Notes due 2012, which are unconditionally guaranteed by the
Subsidiary Guarantors. As an inducement to the Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Company and the Subsidiary Guarantors, jointly and
severally, agree with the Purchasers for the benefit of holders (as defined
herein) from time to time of the Registrable Securities (as defined herein) as
follows:
1. CERTAIN DEFINITIONS. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
"AGREEMENT" means this Exchange and Registration Rights Agreement.
"BASE INTEREST" shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without giving effect to
the provisions of this Agreement.
The term "BROKER-DEALER" shall mean any broker or dealer registered with
the Commission under the Exchange Act.
"CLOSING DATE" shall mean the date on which the Securities are initially
issued.
"COMMISSION" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
"EFFECTIVE TIME," in the case of (i) an Exchange Registration, shall mean
the time and date as of which the Commission declares the Exchange Registration
Statement effective or as of which the Exchange Registration Statement otherwise
becomes effective and (ii) a Shelf Registration, shall mean the time and date as
of which the Commission declares the Shelf Registration Statement effective or
as of which the Shelf Registration Statement otherwise becomes effective.
"ELECTING HOLDER" shall mean any holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"EXCHANGE OFFER" shall have the meaning assigned thereto in Section 2(a)
hereof.
"EXCHANGE REGISTRATION" shall have the meaning assigned thereto in Section
3(c) hereof.
"EXCHANGE REGISTRATION STATEMENT" shall have the meaning assigned thereto
in Section 2(a) hereof.
"EXCHANGE SECURITIES" shall have the meaning assigned thereto in Section
2(a) hereof.
The term "HOLDER" shall mean each of the Purchasers and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
"INDENTURE" shall mean the Indenture, dated as of June 5, 2002 among the
Company, the Subsidiary Guarantors and The Bank of New York, as Trustee, as the
same shall be amended from time to time.
"NOTICE AND QUESTIONNAIRE" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of EXHIBIT A
hereto.
The term "PERSON" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"PURCHASE AGREEMENT" shall mean the Purchase Agreement, dated as of May 31,
2002, among the Purchasers, the Subsidiary Guarantors and the Company relating
to the Securities.
"PURCHASERS" shall mean the Purchasers named in Schedule I to the Purchase
Agreement.
"REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED, HOWEVER, that
a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (PROVIDED that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within
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the 180-day period referred to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement registering
such Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances
in which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Company or pursuant to the Indenture; (iv) such Security is eligible to be
sold pursuant to paragraph (k) of Rule 144; or (v) such Security shall cease to
be outstanding.
"REGISTRATION DEFAULT" shall have the meaning assigned thereto in Section
2(c) hereof.
"REGISTRATION EXPENSES" shall have the meaning assigned thereto in Section
4 hereof.
"RESALE PERIOD" shall have the meaning assigned thereto in Section 2(a)
hereof.
"RESTRICTED HOLDER" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
"RULE 144," "RULE 405" AND "RULE 415" shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision), as the same
shall be amended from time to time.
"SECURITIES" shall mean, collectively, the $250,000,000 9% Senior
Subordinated Notes due 2012 of the Company to be issued and sold to the
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Indenture. Each Security is entitled to the benefit of each
guarantee provided for in the Indenture (the "Subsidiary Guarantees") and,
unless the context otherwise requires, any reference herein to a "Security," an
"Exchange Security" or a "Registrable Security" shall include a reference to the
related Subsidiary Guarantees.
"SECURITIES ACT" shall mean the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
"SHELF REGISTRATION" shall have the meaning assigned thereto in Section
2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall have the meaning assigned thereto in
Section 2(b) hereof.
"SPECIAL INTEREST" shall have the meaning assigned thereto in Section 2(c)
hereof.
"SUBSIDIARY GUARANTORS" shall have the meaning assigned thereto in the
Indenture.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.
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Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 90 days
after the Closing Date, a registration statement relating to an offer to
exchange (such registration statement, the "Exchange Registration Statement",
and such offer, the "Exchange Offer") any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company and
guaranteed by the Subsidiary Guarantors, which debt securities and guarantees
are substantially identical to the Securities and the related Subsidiary
Guarantees, respectively (and are entitled to the benefits of a trust indenture
which is substantially identical to the Indenture or is the Indenture and which
has been qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the Securities
Act and do not contain provisions for the additional interest contemplated in
Section 2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Company and the Subsidiary Guarantors agree to use their
reasonable best efforts to cause the Exchange Registration Statement to become
effective under the Securities Act as soon as practicable, but no later than 180
days after the Closing Date. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Company and the
Subsidiary Guarantors further agree to use their reasonable best efforts to (i)
commence and complete the Exchange Offer on or prior to 30 business days, or
longer, if required by the federal securities laws, after such registration
statement has become effective, (ii) hold the Exchange Offer open for at least
30 days and (iii) exchange Exchange Securities for all Registrable Securities
that have been properly tendered and not withdrawn on or prior to the expiration
of the Exchange Offer. The Exchange Offer will be deemed to have been
"completed" only if the debt securities and related guarantees received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder without further
compliance with Section 5 of the Securities Act (except for the requirement to
deliver a prospectus included in the Exchange Registration Statement applicable
to resales by broker-dealers of Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable
Securities other than those acquired by the broker-dealer directly from the
Company) and without material restrictions under the blue sky or securities laws
of a substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to occur
of (i) the Company having exchanged the Exchange Securities for all outstanding
Registrable Securities pursuant to the Exchange Offer and (ii) the Company
having exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is at least
30 days following the commencement of the Exchange Offer. The Company agrees (x)
to include in the Exchange Registration Statement a prospectus for use in any
resales by any holder of Exchange Securities that is a broker-dealer (where such
Exchange Security was received by a broker-dealer in an Exchange Offer in
exchange for a Registrable Security that was acquired by such broker-dealer for
its own account as a result of market-making or other trading activities, so
long as such Registrable Security was not acquired directly from the Company or
an affiliate of the Company) and (y) to keep such Exchange Registration
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Statement effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 180th day after the Exchange Offer has been completed or
such time as such broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall have the
benefit of the rights of indemnification and contribution set forth in Sections
6(a), (c), (d) and (e) hereof.
(b) If (i) the Company and the Subsidiary Guarantors are not (A) required to
file the Exchange Registration Statement; or (B) permitted to consummate the
Exchange Offer, because the Exchange Offer is not permitted by applicable law or
Commission policy, (ii) any holder of Registrable Securities notifies the
Company in writing prior to the 20th day following the consummation of the
Exchange Offer that (X) it is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (Y) that it may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales; or (Z)
that it is a broker-dealer and owns Securities acquired directly from the
Company or an affiliate of the Company, or (iii) the Exchange Offer has not been
completed within 225 days following the Closing Date, the Company and the
Subsidiary Guarantors will use their reasonable best efforts to file under the
Securities Act as soon as practicable, but no later than on or prior to 60 days
after the time such obligation to file arises, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities affected thereby, pursuant
to Rule 415 or any similar rule that may be adopted by the Commission (such
filing, the "Shelf Registration" and such registration statement, the "Shelf
Registration Statement"). The Company and the Subsidiary Guarantors, jointly and
severally, agree to use their reasonable best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 120 days
after such obligation arises and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the second
anniversary of the Effective Time or such time as there are no longer any
Registrable Securities outstanding, PROVIDED, HOWEVER, that no holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder who agrees to be
bound by all of the provisions of this Agreement applicable to such holder, and
(y) after the Effective Time of the Shelf Registration Statement, promptly upon
the request of any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement, PROVIDED, HOWEVER,
that nothing in this clause (y) shall relieve any such holder of the obligation
to return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. The Company and the Subsidiary
Guarantors further agree to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Company and the
Subsidiary Guarantors for such Shelf Registration Statement or by the Securities
Act or rules and regulations thereunder for shelf registration, and the Company
shall furnish to each Electing Holder copies of any such supplement or amendment
prior to its being used or promptly following its filing with the Commission.
(c) In the event that (i) the Company and the Subsidiary Guarantors have not
filed the Exchange Registration Statement or Shelf Registration Statement on or
before the date on which such registration statement is required to be filed
pursuant to Section 2(a) or 2(b),
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respectively, or (ii) such Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the Commission
on or before the date on which such registration statement is required to become
or be declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 30 business days after
the initial effective date of the Exchange Registration Statement relating to
the Exchange Offer (if the Exchange Offer is then required to be made) or (iv)
any Exchange Registration Statement or Shelf Registration Statement required by
Section 2(a) or 2(b) hereof is filed and declared effective but shall
thereafter, prior to the time such Exchange Registration Statement or Shelf
Registration Statement is no longer required to be effective pursuant to Section
2(a) or 2(b) either be withdrawn by the Company or the Subsidiary Guarantors or
shall become subject to an effective stop order issued pursuant to Section 8(d)
of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default" and each period during which a Registration Default has occurred and is
continuing, a "Registration Default Period"), then, as liquidated damages for
such Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue,
with respect to the first 90-day period immediately following the occurrence of
the first Registration Default, in an amount equal to $.05 per week per $1,000
principal amount of Securities held by the Holders. The amount of Special
Interest will increase by an additional $.05 per week per $1,000 principal
amount of Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Special
Interest for all Registration Defaults of $.50 per week per $1,000 principal
amount of Securities. Following the cure of all Registration Defaults, the
accrual of Special Interest will cease. All accrued Special Interest through
each record date with respect to the succeeding Interest Payment Date will be
paid by the Company and the Guarantors on each Interest Payment Date (as defined
in the Indenture) to the Global Note Holder (as defined in the Indenture) by
wire transfer of immediately available funds or by federal funds check and to
Holders of Certificated Notes (as defined in the Indenture) by wire transfer to
the accounts specified by them or by mailing checks to their registered
addresses if no such accounts have been specified.
(d) The Company shall take, and shall cause the Subsidiary Guarantors to take,
all actions necessary or advisable to be taken by it to ensure that the
transactions contemplated herein are effected as so contemplated, including all
actions necessary or desirable to register the Subsidiary Guarantees under the
registration statement contemplated in Section 2(a) or 2(b) hereof, as
applicable.
(e) Any reference herein to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. REGISTRATION PROCEDURES. If the Company and the Subsidiary Guarantors
file a registration statement pursuant to Section 2(a) or Section 2(b), the
following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act of 1939.
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(b) In the event that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(c) In connection with the obligations of the Company and the Subsidiary
Guarantors with respect to the registration of Exchange Securities as
contemplated by Section 2(a) (the "Exchange Registration"), if applicable, the
Company shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 90 days after the Closing Date, an Exchange Registration
Statement on any form which may be utilized by the Company and which shall
permit the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as contemplated by
Section 2(a), and use its reasonable best efforts to cause such Exchange
Registration Statement to become effective as soon as practicable
thereafter, but no later than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Exchange Registration Statement and
the prospectus included therein as may be necessary to effect and maintain
the effectiveness of such Exchange Registration Statement for the periods
and purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer reasonably
may request, in a timely manner, prior to the expiration of the Resale
Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement,
and confirm such advice in writing, (A) when such Exchange Registration
Statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to
such Exchange Registration Statement or any post-effective amendment, when
the same has become effective, (B) of any comments by the Commission and by
the blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus or for
additional information, (C) after receipt by the Company of any
notification with respect to the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the Securities Act,
that such Exchange Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment does not conform in all material
respects to the applicable
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requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(iv) in the event that the Company would be required, pursuant to
Section 3(e)(iii)(F) above, to notify any broker-dealers holding Exchange
Securities, without undue delay prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and shall 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 not misleading in light of the circumstances then
existing;
(v) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use its reasonable best efforts to (A) register or qualify
the Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that neither the Company
nor the Subsidiary Guarantors shall be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of
such Exchange Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(d) In connection with the obligations of the Company and the Subsidiary
Guarantors with respect to the Shelf Registration, if applicable, the Company
shall, as soon as practicable (or as
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otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but in any case within the time periods specified in Section 2(b), a Shelf
Registration Statement on any form which may be utilized by the Company and
which shall register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of disposition as
may be specified by such of the holders as, from time to time, may be
Electing Holders and use its reasonable best efforts to cause such Shelf
Registration Statement to become effective as soon as practicable but in
any case within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective Time
of the Shelf Registration Statement, mail the Notice and Questionnaire to
the holders of Registrable Securities; provided, that no holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of Registrable Securities
at any time, unless such holder has returned a completed and signed Notice
and Questionnaire to the Company by the deadline for response set forth
therein; and provided, further that holders of Registrable Securities shall
have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and
signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities that is
not then an Electing Holder, promptly send a Notice and Questionnaire to
such holder; provided that the Company shall not be required to take any
action to name such holder as a selling securityholder in the Shelf
Registration Statement or to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities until such
holder has returned a completed and signed Notice and Questionnaire to the
Company;
(iv) as soon as practicable prepare and file with the Commission
such amendments and supplements to such Shelf Registration Statement and
the prospectus included therein as may be necessary to effect and maintain
the effectiveness of such Shelf Registration Statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such Shelf Registration Statement, and furnish to the Electing
Holders copies of any such supplement or amendment simultaneously with or
prior to its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect
to the disposition of all of the Registrable Securities covered by such
Shelf Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf Registration
Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act), if any, thereof, (C)
any sales or placement agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all the Electing Holders the
opportunity to participate in the preparation of such Shelf Registration
Statement, each
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prospectus included therein or filed with the Commission and each amendment
or supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and books and
records of the Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential, until
such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration statement or
otherwise), or (B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject to
the requirements of such order, and only after such person shall have given
the Company prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to such
Shelf Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and regulations
of the Commission and does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof (which notification
may be made through any managing underwriter that is a representative of
such underwriter for such purpose) and confirm such advice in writing, (A)
when such Shelf Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) after receipt by
the Company of any notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company contemplated by Section 3(d)(xvii) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F) if
at any time when a prospectus is required to be delivered under the
Securities Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement
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or post-effective amendment does not conform in all material respects to
the applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder or contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(ix) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any
placement or sales agent or any Electing Holder, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms of the
sale of such Registrable Securities, including information with respect to
the principal amount of Registrable Securities being sold by such Electing
Holder or agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of such
Registrable Securities and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold by such Electing Holder or agent or to
such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) a copy of such Shelf
Registration Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon request) and documents incorporated by
reference therein) and such number of copies of such Shelf Registration
Statement (excluding exhibits thereto and documents incorporated by
reference therein unless specifically so requested by such Electing Holder,
agent or underwriter, as the case may be) and of the prospectus included in
such Shelf Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material respects with
the applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, and such
other documents, as such Electing Holder, agent, if any, and underwriter,
if any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such Electing Holder,
offered or sold by such agent or underwritten by such underwriter and to
permit such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the Company
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Securities covered
by the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(xii) use reasonable best efforts to (A) register or qualify the
Registrable
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Securities to be included in such Shelf Registration Statement under such
securities laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and underwriter,
if any, thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable any
such Electing Holder, agent or underwriter to complete its distribution of
Securities pursuant to such Shelf Registration Statement and (C) take any
and all other actions as may be reasonably necessary or advisable to enable
each such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; provided, however, that neither the Company nor the Subsidiary
Guarantors shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(d)(xii), (2)
consent to general service of process in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or any agreement
between it and its stockholders;
(xiii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their Registrable
Securities;
(xiv) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or
engraved, or produced by any combination of such methods, on steel engraved
borders, and which certificates shall not bear any restrictive legends;
and, in the case of an underwritten offering, enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any
sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xvi) enter into such customary agreements, including if
requested, an underwriting agreement in customary form, and take such other
actions in connection therewith as any Electing Holders aggregating at
least 20% in aggregate principal amount of the Registrable Securities at
the time outstanding shall request in order to expedite or facilitate the
disposition of such Registrable Securities, PROVIDED, that the Company
shall not be required to enter into any such agreement more than two times
with respect to all the Registrable Securities and may delay entering into
such agreement until the consummation of any underwritten public offering
in which the Company shall have then engaged;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any portion of
the offering contemplated by the Shelf Registration is an underwritten
offering or is made through a
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placement or sales agent or any other entity, (A) make such representations
and warranties to the Electing Holders and the placement or sales agent, if
any, therefor and the underwriters, if any, thereof in form, substance and
scope as are customarily made in connection with an offering of debt
securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Company in customary form and covering
matters of the type customarily covered by such an opinion, as the managing
underwriters, if any, or as any Electing Holders of at least 20% in
aggregate principal amount of the Registrable Securities at the time
outstanding may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such Shelf
Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be covered by such
opinion shall include the due incorporation and good standing of the
Company and its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 3(d)(xvi) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
applicable registrable Securities; the absence of material legal or
governmental proceedings involving the Company; the absence of a breach by
the Company or any of its subsidiaries of, or a default under, material
agreements binding upon the Company or any subsidiary of the Company; the
absence of governmental approvals required to be obtained in connection
with the Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section 3(d)(xvi) hereof, except such
approvals as may be required under state securities or blue sky laws; the
material compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, respectively; and, as
of the date of the opinion and of the Shelf Registration Statement or most
recent post-effective amendment thereto, as the case may be, the absence
from such Shelf Registration Statement and the prospectus included therein,
as then amended or supplemented, and from the documents incorporated by
reference therein (in each case other than the financial statements and
other financial information contained therein) of an untrue statement of a
material fact or the omission to state therein a material fact necessary to
make the statements therein not misleading (in the case of such documents,
in the light of the circumstances existing at the time that such documents
were filed with the Commission under the Exchange Act)); (C) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing Holders, the
placement or sales agent, if any, therefor or the underwriters, if any,
thereof, dated (i) the effective date of such Shelf Registration Statement
and (ii) the effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment
to such Shelf Registration Statement which includes unaudited or audited
financial statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant to
any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a
-13-
period subsequent to that of the latest such statements included in such
prospectus, dated the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in customary form and
covering such matters of the type customarily covered by letters of such
type; (D) deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by any Electing Holders of at
least 20% in aggregate principal amount of the Registrable Securities at
the time outstanding or the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or those
contained in Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting agreement or
other agreement entered into by the Company or the Subsidiary Guarantors;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable Securities
of any proposal by the Company to amend or waive any provision of this
Exchange and Registration Rights Agreement pursuant to Section 9(h) hereof
and of any amendment or waiver effected pursuant thereto, each of which
notices shall contain the text of the amendment or waiver proposed or
effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "Conduct Rules)
of the National Association of Securities Dealers, Inc. ("NASD") or any
successor thereto, as amended from time to time) thereof, whether as a
holder of such Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such Conduct
Rules, including by (A) if such Conduct Rules shall so require, engaging a
"qualified independent underwriter" (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration Statement relating
to such Registrable Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering
contemplated by such Shelf Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other customary
extent as may be requested by such underwriter), and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but in any event not later than eighteen months after the
effective date of such Shelf Registration Statement, an earning statement
of the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the Electing Holders, the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof, the
Company shall without undue delay prepare and furnish to each of the Electing
Holders, to each placement or sales agent, if any, and to each such
-14-
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of Registrable
Securities, such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall 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 not misleading in
light of the circumstances then existing. Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section 3(d)(viii)(F) hereof,
such Electing Holder shall forthwith discontinue the disposition of Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such Electing Holder shall have received copies of
such amended or supplemented prospectus, and if so directed by the Company, such
Electing Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Electing Xxxxxx's
possession of the prospectus covering such Registrable Securities at the time of
receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice Questionnaire, the
Company may require such Electing Holder to furnish to the Company such
additional information regarding such Electing Holder and such Electing Holder's
intended method of distribution of Registrable Securities as may be required in
order to comply with the Securities Act. Each such Electing Holder agrees to
notify the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder to the Company or of
the occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities or omits
to state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to such Electing Holder or the disposition of such Registrable
Securities, 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 in light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the Company will
not, and will not permit any of its "affiliates" (as defined in Rule 144) to,
resell any of the Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act.
4. REGISTRATION EXPENSES. The Company agrees to bear and to pay or cause to
be paid promptly all expenses incident to the Company's performance of or
compliance with this Exchange and Registration Rights Agreement, including (a)
all Commission and any NASD registration, filing and review fees and expenses
including fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may designate, including any fees and disbursements of counsel
for the Electing Holders or underwriters in connection with such qualification
and determination, (c) all expenses relating to the preparation, printing,
production,
-15-
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, the expenses of
preparing the Securities for delivery and the expenses of printing or producing
any underwriting agreements, agreements among underwriters, selling agreements
and blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses relating to the offering, sale or delivery of Securities and the
preparation of documents referred in clause (c) above, (e) reasonable fees and
expenses of the Trustee under the Indenture, any agent of the Trustee and any
counsel for the Trustee and of any collateral agent or custodian, (f) internal
expenses (including all salaries and expenses of the Company's officers and
employees performing legal or accounting duties), (g) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the reasonable expenses of any opinions or "cold comfort" letters
required by or incident to such performance and compliance), (h) reasonable
fees, disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 3(d)(xix) hereof, (i) reasonable fees, disbursements
and expenses of one counsel for the Electing Holders retained in connection with
a Shelf Registration, as selected by the Electing Holders of at least a majority
in aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), (j) any
fees charged by securities rating services for rating the Securities, and (k)
reasonable fees, expenses and disbursements of any other persons, including
special experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are incurred, assumed or paid by any holder of Registrable Securities
or any placement or sales agent therefor or underwriter thereof, the Company
shall reimburse such person for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency fees and commissions and underwriting discounts
and commissions attributable to the sale of such Registrable Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES. The Company and the Subsidiary
Guarantors, jointly and severally, represent and warrant to, and agree with,
each Purchaser and each of the holders from time to time of Registrable
Securities that:
(a) Each registration statement covering Registrable Securities and each
prospectus (including any preliminary or summary prospectus) contained therein
or furnished pursuant to Section 3(c) or Section 3(d) hereof and any further
amendments or supplements to any such registration statement or prospectus, when
it becomes effective or is filed with the Commission, as the case may be, and,
in the case of an underwritten offering of Registrable Securities, at the time
of the closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder and
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 not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act, other
than from (i) such time as a notice has been given to holders of Registrable
Securities pursuant to Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof
until (ii) such time as the Company furnishes an amended or supplemented
prospectus pursuant to Section 3(e) or Section 3(c)(iv) hereof, each such
registration statement, and each prospectus (including any summary prospectus)
-16-
contained therein or furnished pursuant to Section 3(d) or Section 3(c) hereof,
as then amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and 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 not misleading in the
light of the circumstances then existing; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to in
Section 5(a) hereof, when they become or became effective or are or were filed
with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company and the Subsidiary Guarantors with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not (i) conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, any subsidiary of the Company or
any Subsidiary Guarantor is a party or by which the Company, any subsidiary of
the Company or any Subsidiary Guarantor is bound or to which any of the property
or assets of the Company, any subsidiary of the Company or any Subsidiary
Guarantor is subject, nor (ii) result in any violation of the provisions of the
certificate of incorporation, as amended, or the by-laws of the Company or any
certificate of incorporation or by-laws, certificate of formation or limited
liability company agreement or certificate of limited partnership or limited
partnership agreement of any Subsidiary Guarantor or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, any subsidiary of the Company or any Subsidiary
Guarantor or any of their respective properties, except, in the case of the
clauses (i) and (ii) above, such breaches or violations which would not,
individually or in the aggregate, have any material adverse change in or
affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and the Subsidiary Guarantors
taken as a whole or be reasonably likely to prevent the Company or the
Subsidiary Guarantors from performing their respective obligations hereunder;
and no consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
consummation by the Company and the Subsidiary Guarantors of the transactions
contemplated by this Exchange and Registration Rights Agreement, except the
registration under the Securities Act of the Securities, qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under State
securities or blue sky laws in connection with the offering and distribution of
the Securities.
(d) This Exchange and Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and each Subsidiary Guarantor.
6. INDEMNIFICATION.
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(a) INDEMNIFICATION BY THE COMPANY AND THE SUBSIDIARY GUARANTORS. The Company
and the Subsidiary Guarantors, jointly and severally, will indemnify and hold
harmless each of the holders of Registrable Securities included in an Exchange
Registration Statement, each of the Electing Holders of Registrable Securities
included in a Shelf Registration Statement and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement, as the case may
be, under which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, Electing Holder, agent or
underwriter, or any amendment 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 necessary to make the statements therein not
misleading, and will reimburse such holder, such Electing Holder, such agent and
such underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that neither the Company nor any
Subsidiary Guarantor shall be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto (i) in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein or (ii) distributed by such person in contravention of
a reasonable written direction provided by the Company to such person in advance
of such distribution in accordance with Section 3(e).
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS. The Company
may require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the Electing
Holder of such Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company, the Subsidiary Guarantors, each person who controls
the Company or any of the Subsidiary Guarantors within the meaning of the
Securities Act or Exchange Act and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Company, the
Subsidiary Guarantors or such other holders of Registrable Securities may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such Electing
Holder, agent or underwriter, or any amendment 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 necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Electing Holder or underwriter expressly for
use therein, and (ii) reimburse the Company and the Subsidiary Guarantors for
any legal or other expenses reasonably incurred by the Company and the
Subsidiary Guarantors in connection with investigating or defending any such
action or
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claim as such expenses are incurred; PROVIDED, HOWEVER, that no such Electing
Holder shall be required to undertake liability to any person under this Section
6(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holder's
Registrable Securities pursuant to such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any action
or proceeding for which indemnification is sought, such indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying party
pursuant to the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such action;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
the indemnification provisions of or contemplated by Section 6(a) or 6(b)
hereof. In case any such action shall be brought against any indemnified party
and it shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) CONTRIBUTION. If for any reason the indemnification provisions contemplated
by Section 6(a) or Section 6(b) are unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably
-19-
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 6(d),
no holder shall be required to contribute any amount in excess of the amount by
which the dollar amount of the proceeds received by such holder from the sale of
any Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which such holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
underwriter 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 holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in proportion to
the principal amount of Registrable Securities registered or underwritten, as
the case may be, by them and not joint.
(e) The obligations of the Company and the Subsidiary Guarantors under this
Section 6 shall be in addition to any liability which the Company or the
Subsidiary Guarantors may otherwise have and shall extend, upon the same terms
and conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 6 shall be
in addition to any liability which the respective holder, agent or underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or the Subsidiary Guarantors (including any
person who, with his consent, is named in any registration statement as about to
become a director of the Company or the Subsidiary Guarantors) and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities covered by
the Shelf Registration are to be sold pursuant to an underwritten offering, the
managing underwriter or underwriters thereof shall be designated by Electing
Holders holding at least a majority in aggregate principal amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144. The Company covenants to the holders of Registrable Securities
that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
-20-
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities in connection with that holder's sale pursuant to Rule
144, the Company shall deliver to such holder a written statement as to whether
it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company represents, warrants, covenants and
agrees that it has not granted, and shall not grant, registration rights with
respect to Registrable Securities or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration Rights
Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would be no
adequate remedy at law if the Company fails to perform any of its obligations
hereunder and that the Purchasers and the holders from time to time of the
Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchasers and such holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company or a
Subsidiary Guarantor, to the Company at 0 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxx 00000, and if to a holder, to the address of such holder set forth
in the security register or other records of the Company, or to such other
address as the Company or any such holder may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Exchange and Registration Rights
Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of, and be conclusively deemed to have
agreed to be bound by all of the applicable terms and provisions of this
Exchange and Registration Rights Agreement. If the Company shall so request, any
such successor, assign or transferee shall agree in writing to acquire and hold
the Registrable Securities subject to all of the applicable terms hereof.
-21-
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) GOVERNING LAW. This Exchange and Registration Rights Agreement shall be
GOVERNED by and construed in accordance with the laws of the State of New York.
(g) HEADINGS. The descriptive headings of the several Sections and paragraphs of
this Exchange and Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Exchange and Registration Rights
Agreement and shall not affect in any way the meaning or interpretation of this
Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights Agreement
shall be in effect, this Exchange and Registration Rights Agreement and a
complete list of the names and addresses of all the holders of Registrable
Securities shall be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Securities under the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in Section 9(c) above
and at the office of the Trustee under the Indenture.
(j) COUNTERPARTS. This agreement may be executed by the parties in separate
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
-22-
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Purchasers, the
Subsidiary Guarantors and the Company. It is understood that your acceptance of
this letter on behalf of each of the Purchasers is pursuant to the authority set
forth in a form of Agreement among Purchasers, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
Xxxxxx Automotive Group, Inc.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Xxxxxx Automotive Group Holdings, Inc.
Xxxxxx Automotive Group L.L.C.
Xxxxxx Automotive Management L.L.C.
Xxxxxx Automotive Financial Services, Inc.
Xxxxxx Automotive Used Car Centers L.L.C.
Xxxxxx Automotive Used Car Centers Texas
GP L.L.C.
Xxxxxx Automotive Used Car Centers Texas
X.X.
Xxxxxx Automotive Arkansas L.L.C.
Xxxxxx Automotive Arkansas Dealership
Holdings L.L.C.
NP FLM L.L.C.
NP VKW L.L.C.
Prestige TOY L.L.C.
Premier NSN L.L.C.
Premier LM L.L.C.
Hope FLM L.L.C.
NP MZD L.L.C.
Prestige Bay L.L.C.
Premier PON L.L.C.
Hope CPD L.L.C.
TXK L.L.C.
TXK FRD L.P.
TXK CPD X.X.
Xxxxxx NN L.L.C.
Escude T L.L.C.
Escude M L.L.C.
Escude NS L.L.C.
Escude D X.XX.
Escude MO L.L.C.
Xxxxxx MS Metro L.L.C.
Xxxxxx XX Xxxx-Xxxxxxx L.L.C.
Xxxxxx Automotive Atlanta LLC
Xxxxxx Atlanta HON LLC
Xxxxxx Atlanta Chevrolet LLC
Xxxxxx Atlanta LEX, LLC
Xxxxxx Atlanta AC LLC
Atlanta Real Estate Holdings LLC
Xxxxxx Atlanta Jaguar L.L.C.
Spectrum Insurance Services L.L.C.
Xxxxxx Atlanta AU L.L.C.
Xxxxxx Atlanta Infiniti L.L.C.
Xxxxxx Automotive Jacksonville GP, L.L.C.
Xxxxxx Automotive Jacksonville, X.X.
Xxxxxx Jax Holdings, X.X.
Xxxxxx Jax Management L.L.C.
Xxxxxx Automotive Corp
CP-GMC Motors Ltd
CH Motors Ltd
CN Motors Ltd
CFP Motors Ltd
Avenues Motors Ltd
CHO Partnership Ltd
ANL, L.P.
Bayway Financial Services, X.X.
Xxxxxx Management, L.P.
C&O Properties Ltd
Xxxxxx Automotive Central Florida, L.L.C.
CK Chevrolet, L.L.C.
CK Motors, L.L.C.
Xxxxxx Automotive Deland, L.L.C.
AF Motors, L.L.C.
ALM Motors, L.L.C.
Xxxxxx Xxxxxx Imports 2 LLC
Xxxxxx Xxxxxx Imports LLC
Xxxxxx Cars L.L.C.
Xxxxxx Chevrolet L.L.C.
CSA Imports L.L.C.
Xxxxxx Xxxxxxx Properties, L.L.C.
KP Motors L.L.C.
HFP Motors L.L.C.
Xxxxxx Automotive Mississippi L.L.C.
Xxxxxx XX Xxxxxx L.L.C.
Crown GPG L.L.C.
Crown GBM L.L.C.
Crown GAU L.L.C.
Crown GKI L.L.C.
Crown GMI L.L.C.
Crown GDO L.L.C.
Crown GNI L.L.C.
Crown GHO L.L.C.
Crown GAC L.L.C.
Crown CHH L.L.C.
Crown CHV L.L.C.
Crown RIS L.L.C.
Crown RIA L.L.C.
Crown RIB L.L.C.
Crown Motorcar Company L.L.C.
Crown GVO L.L.C.
Crown FFO L.L.C.
Xxxxxx Automotive North Carolina L.L.C.
Xxxxxx Automotive North Carolina Management
L.L.C.
Xxxxxx Automotive North Carolina Real
Estate Holdings L.L.C.
Xxxxxx Automotive North Carolina
Dealership Holdings L.L.C.
Crown Raleigh L.L.C.
Crown Fordham L.L.C.
Camco Finance L.L.C.
Camco Finance II L.L.C.
Crown FFO Holdings L.L.C.
Crown RPG L.L.C.
Crown FDO L.L.C.
Crown Acura/Nissan L.L.C.
Crown Battleground, LLC
Crown Dodge, LLC
Crown Honda, LLC
Crown Honda-Volvo, LLC
Crown Mitsubishi, LLC
Crown Royal Pontiac, LLC
RER Properties, LLC
RWIJ Properties, LLC
Xxxxxxxx FRD LLC
Xxxxxxxx HON LLC
Xxxxxxxx XXXX LLC
Xxxxxxxx XXXX LLC
Xxxxxxxx MAZ LLC
Xxxxxxxx XXX LLC
Xxxxxxxx XX LLC
Xxxxxxxx SUB L.L.C.
Xxxxxxxx DAM LLC
Xxxxxxx Ford Co
Xxxxxx Automotive Oregon LLC
Xxxxxx Automotive Oregon Management LLC
Xxxxxxxx Auto Credit Northwest, Inc.
Xxxxxxxx on Canyon, L.L.C.
Xxxxxxxx Xxxxxxxxxx L.L.C.
Xxxxxxxx SUZU L.L.C.
Xxxxxx Automotive St. Louis L.L.C.
Xxxxxx St. Xxxxx XXX L.L.C.
Xxxxxx St. Xxxxx Cadillac L.L.C.
Xxxxxx St. Xxxxx Gen L.L.C.
Xxxxxx Automotive Tampa GP L.L.C.
Xxxxxx Automotive Tampa, X.X.
Xxxxxx Tampa Management L.L.C.
Tampa LM L.P.
Tampa Xxxx X.X.
Tampa KIA L.P.
Tampa Mit L.P.
Tampa Suzu L.P.
WMZ Motors L.P.
WMZ Xxxxxxx Motors L.P.
WTY Motors X.X.
Xxxxxx Automotive Brandon L.P.
Precision Enterprises Tampa, Inc.
Precision Nissan, Inc.
Precision Computer Services, Inc.
Precision Motorcars, Inc.
Precision Infiniti, Inc.
Dealer Profit Systems L.L.C.
XxXxxxx Plano - Acra XX
XxXxxxx Houston - Kia XX
XxXxxxx Xxxxxx - Xxxx LP
XxXxxxx Xxxxxx - Hon LP
XxXxxxx Xxxxxx - PB&G XX
XxXxxxx Xxxxxxx - Xxxx LP
Plano Lincoln-Mercury, Inc
XxXxxxx Xxxxxx-Xxx, XX
XxXxxxx Houston-Hon, XX
XxXxxxx Xxxxxxx-Xxxx, XX
Xxxxxx Texas Management, LLC
XxXxxxx Grande, XX
XxXxxxx Outfitters, XX
XxXxxxx Auction, XX
Xxxxxx Automotive Texas, LLC
Xxxxxx Automotive Texas Holdings, LLC
XxXxxxx Communications, X.X.
XxXxxxx Frisco-Hon, L.P.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-In-Fact
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ XXXXXXX, XXXXX & CO.
------------------------
(Xxxxxxx, Xxxxx & Co.)
EXHIBIT A
XXXXXX AUTOMOTIVE GROUP, INC.
INSTRUCTION TO DTC PARTICIPANTS
(DATE OF MAILING)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Xxxxxx Automotive Group, Inc. (the
"Company") $250,000,000 9% Senior Subordinated Notes due 2012 (the "Securities")
are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY OF THE
ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Xxxxxx Automotive
Group, Inc., 0 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxx 00000,
(000) 000-0000.
XXXXXX AUTOMOTIVE GROUP, INC.
Notice of Registration Statement
and
SELLING SECURITYHOLDER QUESTIONNAIRE
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Xxxxxx Automotive Group,
Inc. (the "Company") and the Purchasers named therein. Pursuant to the Exchange
and Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form [__] (the "Shelf Registration Statement") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's $250,000,000 9% Senior Subordinated Notes due 2012 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
----------
* [NOT LESS THAN 28 CALENDAR DAYS FROM DATE OF MAILING.]
A-1
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Exchange and Registration
Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
_____________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below:
_____________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
_____________________________________________________________________
(2) Address for Notices to Selling Securityholder:
-----------------------------------
-----------------------------------
-----------------------------------
Telephone:
-----------------------------------
Fax:
-----------------------------------
Contact Person:
-----------------------------------
(3) Beneficial Ownership of Securities:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (3), THE UNDERSIGNED DOES NOT
BENEFICIALLY OWN ANY SECURITIES.
(a) Principal amount of Registrable Securities beneficially owned:_______
CUSIP No(s). of such Registrable Securities:_________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:__________________________________________________
CUSIP No(s). of such other Securities:_______________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:___________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4), THE UNDERSIGNED SELLING
SECURITYHOLDER IS NOT THE BENEFICIAL OR REGISTERED OWNER OF ANY
OTHER SECURITIES OF THE COMPANY, OTHER THAN THE SECURITIES LISTED
ABOVE IN ITEM (3).
State any exceptions here:
A-4
(5) Relationships with the Company:
EXCEPT AS SET FORTH BELOW, NEITHER THE SELLING SECURITYHOLDER NOR ANY
OF ITS AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS
(5% OR MORE) HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY OTHER
MATERIAL RELATIONSHIP WITH THE COMPANY (OR ITS PREDECESSORS OR
AFFILIATES) DURING THE PAST THREE YEARS.
State any exceptions here:
(6) Plan of Distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED SELLING SECURITYHOLDER
INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE IN
ITEM (3) ONLY AS FOLLOWS (IF AT ALL): SUCH REGISTRABLE SECURITIES
MAY BE SOLD FROM TIME TO TIME DIRECTLY BY THE UNDERSIGNED SELLING
SECURITYHOLDER OR, ALTERNATIVELY, THROUGH UNDERWRITERS,
BROKER-DEALERS OR AGENTS. SUCH REGISTRABLE SECURITIES MAY BE SOLD IN
ONE OR MORE TRANSACTIONS AT FIXED PRICES, AT PREVAILING MARKET
PRICES AT THE TIME OF SALE, AT VARYING PRICES DETERMINED AT THE TIME
OF SALE, OR AT NEGOTIATED PRICES. SUCH SALES MAY BE EFFECTED IN
TRANSACTIONS (WHICH MAY INVOLVE CROSSES OR BLOCK TRANSACTIONS) (i)
ON ANY NATIONAL SECURITIES EXCHANGE OR QUOTATION SERVICE ON WHICH
THE REGISTERED SECURITIES MAY BE LISTED OR QUOTED AT THE TIME OF
SALE, (ii) IN THE OVER-THE-COUNTER MARKET, (iii) IN TRANSACTIONS
OTHERWISE THAN ON SUCH EXCHANGES OR SERVICES OR IN THE
OVER-THE-COUNTER MARKET, OR (iv) THROUGH THE WRITING OF OPTIONS. IN
CONNECTION WITH SALES OF THE REGISTRABLE SECURITIES OR OTHERWISE,
THE SELLING SECURITYHOLDER MAY ENTER INTO HEDGING TRANSACTIONS WITH
BROKER-DEALERS, WHICH MAY IN TURN ENGAGE IN SHORT SALES OF THE
REGISTRABLE SECURITIES IN THE COURSE OF HEDGING THE POSITIONS THEY
ASSUME. THE SELLING SECURITYHOLDER MAY ALSO SELL REGISTRABLE
SECURITIES SHORT AND DELIVER REGISTRABLE SECURITIES TO CLOSE OUT
SUCH SHORT POSITIONS, OR LOAN OR PLEDGE REGISTRABLE SECURITIES TO
BROKER-DEALERS THAT IN TURN MAY SELL SUCH SECURITIES.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
A-5
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Exchange and Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company and the Subsidiary Guarantors:
Xxxxxx Automotive Group Inc.
0 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
[ATTENTION:]
(ii) With a copy to:
-------------------------
-------------------------
-------------------------
-------------------------
-------------------------
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:
------------------
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Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:
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Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Cravath, Swaine & Xxxxx
---------------------------------
825 Eighth Avenue
---------------------------------
New York, NY 10019
---------------------------------
Attention:
---------------------------------
---------------------------------
A-7
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
The Bank of New York
Xxxxxx Automotive Group, Inc.
c/o The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Trust Officer
Re: Xxxxxx Automotive Group, Inc. (the "Company")
$250,000,000 9% Senior Subordinated Notes due 2012
Dear Sirs:
Please be advised that _____________________ has transferred $________________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [ ] (File No. 333-________) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [ ], 2002 or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
------------------------
(Name)
By:
------------------------
(Authorized Signature)
B-1
