Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
DATED FEBRUARY 24, 1998
BETWEEN
INTERPOOL, INC.
AND
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
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as Initial Purchaser
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of February 24, 1998, between INTERPOOL, INC., a Delaware
corporation (the "COMPANY"), and XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION (the "INITIAL PURCHASER").
This Agreement is made pursuant to the Purchase Agreement dated
February 19, 1998 (the "PURCHASE AGREEMENT"), between the Company, as issuer of
the 6-5/8% Notes due 2003 (the "Notes"), and the Initial Purchaser, which
provides for, among other things, the sale by the Company to the Initial
Purchaser of $100,000,000 aggregate principal amount of the Company's Notes. In
order to induce the Initial Purchaser to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchaser and its direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"ADVICE" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"AFFILIATE" shall have the meaning given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 3(t)
hereof.
"BUSINESS DAY" means each day, other than a Saturday or Sunday, which
is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
"CLOSING TIME" shall mean the Closing Time as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; PROVIDED, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE NOTES" shall mean securities issued by the Company under an
Indenture and containing terms substantially identical to the Notes (except that
they will not contain terms with respect to the transfer restrictions under the
Securities Act, will not require transfers thereof to be in minimum blocks of
$100,000 aggregate principal amount and will not provide for any Liquidated
Damages thereon).
"EXCHANGE OFFER" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes for an equal principal amount of Exchange
Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section 2(a)
hereof.
"HOLDER" shall mean the Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its respective successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"INDENTURE" shall mean the Indenture relating to the Notes dated as of
February 24, 1998, between the Company, as issuer, and United States Trust
Company of New York, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble
to this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 3(n) hereof.
"ISSUE DATE" shall mean the date of original issuance of the Notes.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2(e)
hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Notes.
"NOTES" shall have the meaning set forth in the preamble to this
Agreement.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 3(t) hereof.
"PERSON" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(n) hereof.
"REGISTRABLE NOTES" shall mean the Notes; PROVIDED, however, that the
Notes shall cease to be Registrable Notes when (i) a Registration Statement with
respect to such Notes for the exchange or resale thereof, as the case may be,
shall have been declared effective under the Securities Act and such Notes shall
have been exchanged or disposed of pursuant to such Registration Statement, (ii)
such Notes shall have been sold or are eligible to be sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act, (iii) such Notes shall have ceased to be
outstanding or (iv) such Notes shall have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradeable by the
holder thereof (other than an Affiliate of the Company).
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any Holder of Registrable Notes in accordance
with the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange Notes or
Registrable Notes) and compliance with the rules of the NASD, (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company and of the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and expenses of the Trustee and
its counsel, and any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the Exchange Notes or
the Registrable Notes on any securities exchange or exchanges, and (viii) the
reasonable fees and expenses of any special experts retained by the Company in
connection with any Registration Statement.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes pursuant to
the provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION EVENT" shall have the meaning set forth in Section
2(b) hereof.
"SHELF REGISTRATION EVENT DATE" shall have the meaning set forth in
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof which
covers all of the Registrable Notes on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"TRUSTEES" shall mean any and all trustees with respect to the Notes.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) EXCHANGE OFFER. To the extent not prohibited by any applicable law
or applicable interpretation of the staff of the SEC, the Company shall, for the
benefit of the Holders, at the Company's cost, use its best efforts to (i) cause
to be filed with the SEC within 120 days after the Issue Date an Exchange Offer
Registration Statement on an appropriate form under the Securities Act covering
the Exchange Offer, (ii) cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act within 150 days after the Issue Date
and (iii) keep such Exchange Offer Registration Statement effective for not less
than 30 calendar days (or longer if required by applicable law) after the date
notice of the Exchange Offer has been mailed to the Holders. Upon the
effectiveness of the Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable Notes
for an equal principal amount of Exchange Notes (assuming that such Holder
represents that the Holder (i) is not an Affiliate of the Company, (ii) acquired
the Exchange Notes in the ordinary course of such Holder's business and (iii)
has no arrangements or understandings with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes)
to transfer such Exchange Notes from and after their receipt without any
limitations or restrictions under the Securities Act and under state securities
or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail or cause to be mailed to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law) (such period referred to herein
as the "EXCHANGE PERIOD");
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Notes delivered for exchange, and a
statement that such Holder is withdrawing its election to have such Notes
exchanged;
(v) notify each Holder that any Note not tendered by such Holder in
the Exchange Offer will remain outstanding and continue to accrue interest
or accumulate distributions, as the case may be, but will not retain any
rights under this Agreement (except in the case of the Initial Purchaser
and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes or portions thereof tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company; and
(iii) issue, and cause the Trustee under the Indenture to promptly
authenticate and deliver to each Holder, new Exchange Notes equal in
principal amount to the principal amount of the Notes as are surrendered by
such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer
will accrue from the last date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on such Note,
from the Issue Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use its efforts to
complete the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. Except as provided
herein, the Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC. Each Holder of Registrable Notes who
wishes to exchange such Registrable Notes for Exchange Notes in the Exchange
Offer will be required to make certain customary representations in connection
therewith, including, in the case of any Holder, representations that (i) the
Holder is not an Affiliate of the Company, (ii) the Exchange Notes to be
received by it were acquired in the ordinary course of its business and (iii) at
the time of the Exchange Offer, it has no arrangement with any person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes. The Company shall inform the Initial Purchaser, after
consultation with the Trustee, of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchaser shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable Notes in
the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, MUTATIS
MUTANDIS, solely with respect to Registrable Notes that are Exchange Notes held
by Participating Broker-Dealers, and the Company shall have no further
obligation to register the Registrable Notes pursuant to Section 2(b) of this
Agreement.
(b) SHELF REGISTRATION. If prior to the expiration of the Exchange
Offer: (i) the Company or the Majority Holders reasonably determine, after
conferring with counsel (which may be in-house counsel), that the Exchange Offer
Registration provided in Section 2(a) above is not available under applicable
law and regulations and currently prevailing interpretations of the staff of the
SEC, (ii) for any reason the Exchange Offer Registration Statement is not
declared effective within 150 days after the Issue Date or (iii) upon the
request of the Initial Purchaser with respect to any Registrable Notes held by
it, if, in the reasonable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP or
other counsel experienced in such matters, the Initial Purchaser is not
permitted pursuant to applicable law or applicable interpretations of the staff
of the SEC, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i)-(iii) being a "SHELF REGISTRATION EVENT" and the date of occurrence thereof,
the "SHELF REGISTRATION EVENT DATE"), then in addition to or in lieu of
effecting the registration of the Exchange Notes pursuant to the Exchange Offer
Registration Statement, the Company will (y) promptly deliver to the Holders
written notice thereof and (z) at the Company's sole expense: (a) as promptly as
practicable after such Shelf Registration Event Date file a Shelf Registration
covering resales of the Notes and (b) use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act. No
Holder of Registrable Notes shall be entitled to include any of its Registrable
Notes in any Shelf Registration pursuant to this Agreement unless and until such
Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company in writing, within 15
days after receipt of a request therefor, such information as the Company may,
after conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees to use its best efforts to keep effective the Shelf
Registration Statement until the earlier of two years after the Issue Date (six
months in the case of a Shelf Registration Statement filed at the request of the
Initial Purchaser under Section 2(b)(iii) hereof) or such time as all of the
applicable Notes have been sold thereunder or otherwise cease to be Registrable
Notes within the meaning of this Agreement (the "EFFECTIVENESS PERIOD"). The
Company shall not permit any securities other than Registrable Notes to be
included in the Shelf Registration. The Company will, in the event a Shelf
Registration Statement is filed, provide to each Holder copies of the Prospectus
that is a part of the Shelf Registration Statement, notify each such Holder when
the Shelf Registration Statement for the Notes has become effective and take
certain other actions as are required to permit unrestricted resales of the
Notes. The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registrations, and the Company agrees to
furnish to the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) EXPENSES. The Company, as issuer of the Notes, shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and/or 2(b) hereof and will reimburse the Initial Purchaser for the
reasonable fees and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Initial Purchaser, incurred in connection with the Exchange
Offer and either Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP or any one other
counsel designated in writing by the Majority Holders to act as counsel for the
Holders of the Registrable Notes in connection with a Shelf Registration
Statement, which other counsel shall be reasonably satisfactory to the Company.
Except as provided herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
(d) EFFECTIVE REGISTRATION STATEMENT. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; PROVIDED, HOWEVER, that if,
after it has been declared effective, the offering of Registrable Notes pursuant
to such Exchange Offer Registration Statement or Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume. The Company will be deemed not to
have used its best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if it voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
that would result in the Holders of Registrable Notes covered thereby not being
able to exchange or offer and sell such Registrable Notes during that period
unless such action is required by applicable law.
(e) LIQUIDATED DAMAGES. If the Company fails to comply with this
Agreement or if the Exchange Offer Registration Statement or the Shelf
Registration Statement fails to become effective, then, Liquidated Damages shall
become payable in respect of the Notes as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the SEC on or prior to the 120th
day after the Issue Date or (B) notwithstanding that the Company has
consummated or will consummate an Exchange Offer, the Company is required
to file a Shelf Registration Statement and such Shelf Registration
Statement is not filed on or prior to the date required by the Registration
Rights Agreement, then commencing on the day after either such required
filing date, Liquidated Damages shall be payable on the principal amount of
the Notes at the rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the SEC on or prior
to the 30th day after the applicable required filing date or (B)
notwithstanding that the Company has consummated or will consummate an
Exchange Offer, the Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not declared effective
by the SEC on or prior to the later of the 30th day after the date such
Shelf Registration Statement was required to be filed and the 150th day
after the Issue Date then, commencing on (y) the 31st day after the
applicable required filing date in the case of (A) above, or (z) the later
of the 31st day after the date such Shelf Registration Statement was
required to be filed and the 151st day after the Issue Date in the case of
(B) above, Liquidated Damages shall be payable on the principal amount of
the Notes at the rate of 0.25% per annum; or
(iii) if (A) the Company has not exchanged Exchange Notes for all
Notes validly tendered, in accordance with the terms of the Exchange Offer
on or prior to the 45th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if applicable, the
Shelf Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be available for use by Holders at any
time prior to (y) the second anniversary of the Issue Date or (z) the
expiration of 90 days from the effective date of Registration Statement
filed at the request of the Initial Purchaser (other than after such time
as all Notes have been disposed of thereunder or otherwise cease to be
Registrable Notes within the meaning of this Agreement), and such event
continues for a period exceeding 30 consecutive days or 90 days (whether or
not consecutive) in any 360-day period, then Liquidated Damages shall be
payable on the principal amount of Notes at a rate of 0.25% per annum
commencing on (x) the 46th day after such effective date, in the case of
(A) above, or (y) the 30th consecutive day or 91st day in any 360-day
period following the day such Shelf Registration Statement ceases to be
available in the case of (B) above;
PROVIDED, HOWEVER, that the Liquidated Damages on the Notes may not exceed in
the aggregate 0.25% per annum; PROVIDED, FURTHER, HOWEVER, that (1) upon the
filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of clause (i) above), (2) upon the effectiveness of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of clause (ii) above), or (3) upon the exchange of Exchange Notes for all
Notes tendered (in the case of clause (iii)(A) above), or upon the availability
of the Shelf Registration Statement which had ceased to be available (in the
case of clause (iii)(B) above), Liquidated Damages on the Notes shall cease to
be payable.
Any amounts of Liquidated Damages due pursuant to clause (i), (ii) or
(iii) above will be payable in cash on the next succeeding March 1 and September
1, as the case may be, to the Holders of record at the close of business on the
February 15 or August 15 immediately preceding such date.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Section 2(a) and Section 2(b) hereof.
3. REGISTRATION PROCEDURES. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall use its best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time period specified in Section 2 hereof on the appropriate form
under the Securities Act, which form (i) shall be selected by the Company, (ii)
shall, in the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of Registrable Notes, and (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith or incorporated therein by reference, if applicable; and use its
best efforts to cause such Registration Statement to become effective and remain
effective (and, in the case of a Shelf Registration Statement, available for
use) in accordance with Section 2 hereof; PROVIDED, HOWEVER, that if (1) such
filing is pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Notes and each such Participating
Broker-Dealer, as the case may be, covered by such Registration Statement, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed. The Company shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may be, their
counsel or the managing underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Effectiveness Period or the Applicable
Period, as the case may be; and cause each Prospectus to be supplemented, if so
determined by the Company or requested by the SEC, by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 (or any
similar provision then in force) under the Securities Act, and comply with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition of all
securities covered by each Registration Statement during the Effectiveness
Period or the Applicable Period, as the case may be, in accordance with the
intended method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes included in the Shelf Registration Statement, at least three
Business Days prior to filing, that a Shelf Registration Statement with respect
to the Registrable Notes is being filed and advise such Holder that the
distribution of Registrable Notes will be made in accordance with the method
selected by the Majority Holders; and (ii) furnish to each Holder of Registrable
Notes included in the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Notes, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Notes; and (iii) consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of Registrable Notes included in the Shelf Registration Statement in connection
with the offering and sale of the Registrable Notes covered by the Prospectus or
any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its best efforts to
register or qualify the Registrable Notes under all applicable state securities
or "blue sky" laws of such jurisdictions by the time the applicable Registration
Statement is declared effective by the SEC as any Holder of Registrable Notes
covered by a Registration Statement and each underwriter of an underwritten
offering of Registrable Notes shall reasonably request in writing in advance of
such date of effectiveness, and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable Notes
owned by such Holder; PROVIDED, HOWEVER, that the Company shall not be required
to (i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such service of process
or (iii) subject itself to taxation in any such jurisdiction if it is not then
so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice that they
will be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(t) hereof, are seeking to sell Exchange Notes
and are required to deliver Prospectuses, promptly notify each Holder of
Registrable Notes, or such Participating Broker-Dealers, as the case may be,
their counsel and the managing underwriters, if any, and promptly confirm such
notice in writing (i) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for amendments
and supplements to a Registration Statement or Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the qualification of
the Registrable Notes or the Exchange Notes to be offered or sold by any
Participating Broker-Dealer in any jurisdiction described in paragraph 3(d)
hereof or the initiation of any proceedings for that purpose, (iv) in the case
of a Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Notes covered thereby, the
representations and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar agreement, cease to be
true and correct in all material respects, (v) of the happening of any event or
the failure of any event to occur or the discovery of any facts or otherwise,
during the Effectiveness Period which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect
or which causes such Registration Statement or Prospectus to omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) the Company's
reasonable determination that a post-effective amendment to the Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of such Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends and in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business Days prior to the
closing of any sale of Registrable Notes pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best efforts to prepare
a supplement or post-effective amendment to such Registration Statement or the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend the sale of Notes pursuant to such Prospectus
until the Company has amended or supplemented such Prospectus to correct such
misstatement or omission and has furnished copies of the amended or supplemented
prospectus to such holder (or Participating Broker-Dealer, as the case may be)
or the Company has given notice that the sale of the Notes may be resumed, as
the case may be;
(j) in the case of a Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders; and make such of the representatives of the Company as shall be
reasonably requested by the Holders of Registrable Notes or an Initial Purchaser
on behalf of such Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes not later than the
effective date of a Registration Statement, and provide the Trustee with printed
certificates for the Exchange Notes or the Registrable Notes, as the case may
be, in a form eligible for deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939 (the "TIA") in connection with the registration of the Exchange Notes or
Registrable Notes, as the case may be, and effect such changes to such documents
as may be required for them to be so qualified in accordance with the terms of
the TIA and execute, and use its best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such documents to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions as are reasonably requested in order
to expedite or facilitate the registration or the disposition of such
Registrable Notes, and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration, if requested by (x) the Initial Purchaser, in the case where the
Initial Purchaser holds Notes acquired by it as part of its initial allotment
and (y) other Holders of the Registrable Notes covered thereby: (i) make such
representations and warranties to Holders of such Registrable Notes and the
underwriters (if any), with respect to the business of the Company and its
subsidiaries as then conducted and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which may be in the form
of a reliance letter) in form and substance reasonably satisfactory to the
managing underwriters (if any) and the Holders of a majority in principal amount
of the Registrable Notes being sold, addressed to each selling Holder and the
underwriters (if any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such underwriters (it being agreed that the matters to be covered
by such opinion may be subject to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance with
Statement on Auditing Standards No. 72; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures
no less favorable to the underwriters and the Holders of Registrable Notes than
those set forth in Section 4 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount or liquidation
amount, as the case may be, of Registrable Notes covered by such Registration
Statement and the managing underwriters and agents) customary for such
agreements with respect to all parties to be indemnified pursuant to said
Section (including, without limitation, such underwriters and selling Holders).
The above shall be done at each closing under such underwriting agreement, or as
and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of such Registrable Notes being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries (collectively, the "RECORDS") as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with such Registration
Statement; PROVIDED, HOWEVER, that the foregoing inspection and information
gathering shall be coordinated on behalf of any Participating Broker-Dealer by
the Initial Purchaser and on behalf of the other parties by one counsel
designated by the Majority Holders on behalf of such other parties as described
in Section 2(c) hereof. Records which the Company determines, in good faith, to
be confidential and any records which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a material misstatement or
omission in such Registration Statement, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit or proceeding
or (iii) the information in such Records has been made generally available to
the public. Each selling Holder of such Registrable Notes and each such
Participating Broker-Dealer will be required to agree in writing that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and allow the
Company at its expense to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
(o) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make generally
available to its securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods;
(p) upon consummation of an Exchange Offer, if requested by a Trustee,
obtain an opinion of counsel to the Company addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the Exchange Offer
substantially to the effect that (i) the Company has duly authorized, executed
and delivered the Exchange Notes and (ii) the Exchange Notes constitute legal,
valid and binding obligations of the Company, enforceable against the Company,
in accordance with its respective terms (in each case, with customary
exceptions);
(q) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as directed
by the Company), in exchange for the Exchange Notes, the Company shall xxxx, or
cause to be marked, on such Registrable Notes delivered by such Holders that
such Registrable Notes are being cancelled in exchange for the Exchange Notes;
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the NASD;
(s) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Notes covered by a Registration Statement
contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the Initial
Purchaser or another representative of the Participating Broker-Dealers, and
which shall contain a summary statement of the positions taken or policies made
by the staff of the SEC with respect to the potential "underwriter" status of
any broker-dealer (a "PARTICIPATING BROKER-DEALER") that holds Registrable Notes
acquired for its own account as a result of market-making activities or other
trading activities and that will be the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Notes to be received by such
broker-dealer in the Exchange Offer, whether such positions or policies have
been publicly disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Initial Purchaser or such other
representative, represent the prevailing views of the staff of the SEC,
including a statement that any such broker-dealer who receives Exchange Notes
for Registrable Notes pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes, (ii)
furnish to each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby consents
to the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Notes covered by the Prospectus or any amendment or supplement
thereto), (iii) use its best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus contained therein
in order to permit such Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirements of the Securities Act for such
period of time as such Persons must comply with such requirements under the
Securities Act and applicable rules and regulations in order to resell the
Exchange Notes; PROVIDED, HOWEVER, that such period shall not be required to
exceed 180 days (or such longer period if extended pursuant to the last sentence
of Section 3 hereof) (the "APPLICABLE PERIOD"), and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
acquired for its own account as a result of market-making activities
or other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange Notes received in respect of such Registrable Notes pursuant
to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the Securities
Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchaser or to another
representative of the Participating Broker-Dealers, if requested by
the Initial Purchaser or such other representative of the
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to the
Initial Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements
and such other matters as may be reasonably requested (it being agreed
that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar to those
set forth in Section 5(h) of the Purchase Agreement and such
additional certifications as are customarily delivered in a public
offering of debt securities and (iii) as well as upon the
effectiveness of the Exchange Offer Registration Statement, a comfort
letter, in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company, such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Notes of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
Section 3(t) hereof are seeking to sell Exchange Notes and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof or until it is advised in
writing (the "ADVICE") by the Company that the use of the applicable Prospectus
may be resumed, and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Notes or Exchange Notes,
as the case may be, current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Notes or Exchange Notes, as the case may be, pursuant to a Registration
Statement, the Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement to
the Registration Statement and shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have made available
to the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with any Registration Statement, the Company agrees,
jointly and severally, to indemnify and hold harmless the Initial Purchaser,
each Holder, each underwriter who participates in an offering of the Registrable
Notes, each Participating Broker-Dealer, each agent, employee, officer and
director of any of the foregoing parties and each person that controls each of
the foregoing parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and agents, employees, officers and directors of
any such controlling person (each, a "SECTION 4(A) INDEMNIFIED PARTY") from and
against any and all losses, claims, damages, judgments, liabilities and expenses
(including the reasonable fees and expenses of counsel and other expenses in
connection with investigating, defending or settling any such action or claim)
as they are incurred which arise out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement covering Registrable Notes or Exchange Notes or any amendment or
supplement thereto or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except (i) the Company
shall not be liable to any Section 4(a) Indemnified Party in any such case
insofar as such losses, claims, damages, judgments, liabilities or expenses
arise out of, or are based upon, any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
by such Holder, Initial Purchaser, Participating Broker-Dealer or any
underwriter to the Company expressly for use therein and (ii) the Company shall
not be liable to any Section 4(a) Indemnified Party under the indemnity
agreement in this Section 4(a) with respect to any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary Prospectus
to the extent that any such loss, claim, damage, judgment, liability or expense
of any Holder, Initial Purchaser, Participating Broker-Dealer, any underwriter
or controlling person results from the fact that such Holder, Initial Purchaser,
any underwriter or Participating Broker-Dealer sold Notes to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the final Prospectus as then amended or supplemented if the
Company had previously furnished copies thereof to such Holder, Initial
Purchaser, underwriter or Participating Broker-Dealer and the loss, claim,
damage, judgment, liability or expense of such Holder, Initial Purchaser,
underwriter, Participating Broker-Dealer or controlling person results from an
untrue statement or omission of a material fact contained in the preliminary
Prospectus which was corrected in the final Prospectus. Any amounts advanced by
the Company to a Section 4(a) Indemnified Party as a result of such losses shall
be returned to the Company if it shall be finally determined by a court in a
judgment not subject to appeal or final review that such indemnified party was
not entitled to indemnification by the Company.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Section 4(a) Indemnified Party with respect to which indemnity may be sought
against the Company pursuant to this Section 4, such Section 4(a) Indemnified
Party shall promptly notify the Company in writing, and the Company shall have
the right to assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Section 4(a) Indemnified Party and payment of
all fees and expenses; PROVIDED, HOWEVER, that the omission so to notify the
Company shall not relieve the Company from any liability that they may have to
any Section 4(a) Indemnified Party (except to the extent that the Company is
materially prejudiced or otherwise forfeit substantive rights or defenses by
reason of such failure). A Section 4(a) Indemnified Party shall have the right
to employ separate counsel in any such action or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Section 4(a) Indemnified Party unless (i) the Company agrees
in writing to pay such fees and expenses, (ii) the Company has failed promptly
to assume the defense and employ counsel satisfactory to the Section 4(a)
Indemnified Party or (iii) the named parties to any such action or proceeding
(including any unpleaded parties) include the Section 4(a) Indemnified Party and
the Company and such Section 4(a) Indemnified Party shall have been advised in
writing by its counsel that representation of them and the Company by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation has been proposed) due to actual or
potential differing interests between them (in which case the Company shall not
have the right to assume the defense of such action on behalf of such Section
4(a) Indemnified Party). It is understood that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for such Section 4(a) Indemnified Party, and that all such fees and expenses
shall be reimbursed as they are incurred. The Company shall not be liable for
any settlement of any such action effected without the written consent of the
Company, but if settled with the written consent of the Company, or if there is
a final judgment with respect thereto, the Company agrees to indemnify and hold
harmless each Section 4(a) Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. The Company shall not,
without the prior written consent of each Section 4(a) Indemnified Party
affected thereby, effect any settlement of any pending or threatened proceeding
in which such Section 4(a) Indemnified Party has sought indemnity hereunder,
unless such settlement includes an unconditional release of such Section 4(a)
Indemnified Party from all liability arising out of such action, claim,
litigation or proceeding.
(c) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, any underwriter and the other selling Holders and
each of their respective directors, officers (including each officer of the
Company who signed the Registration Statement) and any person controlling the
Company, any underwriter or any other selling Holder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each such party, a
"SECTION 4(C) INDEMNIFIED PARTY") to the same extent as the foregoing indemnity
from the Company to any Section 4(a) Indemnified Party, but only with respect to
information furnished to the Company in writing by such Holder, expressly for
use in the Registration Statement, Prospectus (or any amendment or supplement
thereto), or any preliminary Prospectus, PROVIDED, HOWEVER, that, in the case of
a Shelf Registration Statement, no such Holder shall be liable for any amount
hereunder in excess of the amount by which the net proceeds received by such
Holder from the sale of Registrable Notes pursuant to such Shelf Registration
Statement 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. In case any action shall be brought against any Section
4(c) Indemnified Party based on the Registration Statement, Prospectus (or any
amendment or supplement thereto), or any preliminary Prospectus and in respect
of which indemnification may be sought against each Holder pursuant to this
Section 4(c), each Holder shall have the rights and duties given to the Company
by Section 4(a) (except that if the Company shall have assumed the defense
thereof, each Holder may, but shall not be required to, employ separate counsel
therein and participate in the defense thereof and the fees and expenses of such
counsel shall be at the expense of the Holder) and the Section 4(c) Indemnified
Parties shall have the rights and duties given to the Section 4(a) Indemnified
Parties by Section 4(b).
(d) If the indemnification provided for in this Section 4 is
unavailable to any party entitled to indemnification pursuant to Section 4(a) or
4(c), then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, judgments, liabilities and expenses
in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and each Holder, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
judgments, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and each
Holder, on the other, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by each Holder, on the other, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company, and each Holder agree that it would not be just and
equitable if contribution pursuant to Section 4(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 4(d). No person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 4 are in addition to any liability that any indemnifying party may
otherwise have to any indemnified party.
5. MISCELLANEOUS.
(a) RULE 144 AND RULE 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will use its best efforts to
file the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
SEC thereunder, or, if it ceases to be so required to file such reports, it
will, upon the request of any Holder of Registrable Notes (a) make publicly
available such information as is necessary to permit sales of its securities
pursuant to Rule 144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of its securities pursuant
to Rule 144A under the Securities Act and it will take such further action as
any Holder of Registrable Notes may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, (ii) Rule 144A under the Securities Act, as such
rule may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Notes, the Company will deliver to such Holder a written statement as to whether
it has complied with such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's other issued and outstanding securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; PROVIDED that no amendment, modification or supplement or waiver
or consent to the departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable Notes unless consented
to in writing by such Holder of Registrable Notes. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended, without the consent of any Holder
of Registrable Notes, by written agreement signed by the Company and the Initial
Purchaser, to cure any ambiguity, correct or supplement any provision of this
Agreement that may be inconsistent with any other provision of this Agreement or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given by
written agreement signed by the Company and the Initial Purchaser to the extent
that any such amendment, modification, supplement, waiver or consent is, in
their reasonable judgment, necessary or appropriate to comply with applicable
law (including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to an Initial
Purchaser, such provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by written
agreement signed by the Company and the Initial Purchaser.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial Purchaser,
the address set forth in the Purchase Agreement; and (ii) if to the Company,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the respective successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED, HOWEVER, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof.
(f) THIRD PARTY BENEFICIARY. The Initial Purchaser shall be a third
party beneficiary of the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY OR ITS Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERPOOL, INC.
By: /S/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman and CEO
Confirmed and accepted as of
the date first above
written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /S/ XXXXXXX XXXXXXX
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
