EXHIBIT 4.5
SENIOR SUBORDINATED NOTE REGISTRATION RIGHTS AGREEMENT
This SENIOR SUBORDINATED NOTE REGISTRATION RIGHTS AGREEMENT dated
October 29, 2004 (the "Agreement") is entered into by and among Boise Cascade,
L.L.C., a Delaware limited liability company (the "Company"), Boise Cascade
Finance Corporation, a Delaware corporation and wholly-owned subsidiary of the
Company (together with the Company, the "Issuers"), the guarantors listed in
Schedule 1 hereto (the "Guarantors"), X.X. Xxxxxx Securities Inc. ("JPMorgan"),
Xxxxxx Brothers Inc., Deutsche Bank Securities Inc. and Xxxxxxx, Xxxxx & Co.
(collectively, the "Initial Purchasers").
The Issuers, the Guarantors and the Initial Purchasers are parties to
the Purchase Agreement dated October 15, 2004 (the "Purchase Agreement"), which
provides for the sale by the Issuers to the Initial Purchasers of $250,000,000
aggregate principal amount of the Issuers' Senior Floating Rate Notes due 2012
which will be guaranteed on an unsecured senior basis by each of the Guarantors
and $400,000,000 aggregate principal amount of the Issuers' 7-1/8% Senior
Subordinated Notes due 2014 (the "Securities") which will be guaranteed on an
unsecured senior subordinated basis by each of the Guarantors. As an inducement
to the Initial Purchasers to enter into the Purchase Agreement, the Issuers and
the Guarantors have agreed to provide to the Initial Purchasers and their direct
and indirect transferees the registration rights with respect to the Senior
Subordinated Notes 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 terms shall
have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Issuers and the
Guarantors of Senior Subordinated Exchange Securities for Registrable Securities
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 any
document incorporated by reference therein.
"Guarantors" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Securities dated
as of the date hereof, among the Issuers, the Guarantors and U.S. Bank National
Association, as trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspector" shall have the meaning set forth in Section 3(a)(xiii)
hereof.
"Issuers" shall have the meaning set forth in the preamble and shall
also include the successors of either of the Issuers.
"JPMorgan" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of the outstanding Registrable Securities; provided
that whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, any Registrable Securities owned
directly or indirectly by the Issuers or any of their affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount; and provided, further, that if the
Issuers shall issue any additional Securities under the Indenture prior to
consummation of the Exchange Offer or, if applicable, the effectiveness of any
Shelf Registration Statement, such additional Securities and the Registrable
Securities to which this
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Agreement relates shall be treated together as one class for purposes of
determining whether the consent or approval of Holders of a specified percentage
of Registrable Securities has been obtained.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, 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 Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) when such Securities are sold
pursuant to Rule 144 under circumstances after which such Securities are freely
transferable under the Securities Act without registration or (iv) when such
Securities cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuers and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (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 Senior
Subordinated Exchange Securities or Registrable Securities), (iii) subject to
clause (vii) and the exclusion of fees and expenses of Underwriters' counsel
referred to below, 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, any
underwriting agreements, securities sales agreements or other similar agreements
and any other documents relating to the performance of and compliance with this
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Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Issuers and the Guarantors and, in the case of
a Shelf Registration Statement, the reasonable fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Initial Purchasers) and (viii) the
fees and disbursements of the independent public accountants of the Issuers and
the Guarantors, including the expenses of any special audits or "comfort"
letters required by or incident to the performance of and compliance with this
Agreement, but excluding fees and expenses of counsel to the Underwriters (other
than fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions, brokerage commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder.
"Registration Statement" shall mean any registration statement of the
Issuers and the Guarantors that covers any of the Senior Subordinated Exchange
Securities or Registrable Securities 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 any document incorporated by
reference therein.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Senior Subordinated Exchange Securities" shall mean senior
subordinated notes issued by the Issuers and guaranteed by the Guarantors under
the Indenture containing terms identical to the Securities (except that the
Senior Subordinated Exchange Securities will not be subject to restrictions on
transfer or to any increase in annual interest rate for failure to comply with
this Agreement) and to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
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"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers and the Guarantors that covers all or a portion of the
Registrable Securities (but no other securities unless approved by the Holders
whose Registrable Securities are to be covered by such Shelf Registration
Statement) 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 any document incorporated by reference therein.
"Staff" shall mean the staff of the SEC.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3(e) hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. REGISTRATION UNDER THE SECURITIES ACT. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff, the
Issuers and the Guarantors shall use their reasonable best efforts to (i) cause
to be filed an Exchange Offer Registration Statement covering an offer to the
Holders to exchange all the Registrable Securities for Senior Subordinated
Exchange Securities and (ii) have such Registration Statement declared effective
and remain effective until the earlier of such time as the Participating
Broker-Dealers shall have disposed of the Registrable Securities and 180 days
after the closing of the Exchange Offer. The Issuers and the Guarantors shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use their reasonable best efforts
to complete the Exchange Offer not later than 60 days after such effective date.
The Issuers and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Securities validly tendered and not properly
withdrawn will be accepted for exchange;
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(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange
Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for exchange
and a statement that such Holder is withdrawing its election to have
such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Issuers and the Guarantors that (i) any Senior
Subordinated Exchange Securities to be received by it will be acquired in the
ordinary course of its business, (ii) at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Senior Subordinated Exchange Securities in violation of the provisions of
the Securities Act, (iii) it is not an "affiliate" (within the meaning of Rule
405 under the Securities Act) of either Issuer or any Guarantor and (iv) if such
Holder is a broker-dealer that will receive Senior Subordinated Exchange
Securities for its own account in exchange for Registrable Securities that were
acquired as a result of market-making or other trading activities, then such
Holder will deliver a Prospectus in connection with any resale of such Senior
Subordinated Exchange Securities.
As soon as practicable after the last Exchange Date, the Issuers and
the Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by
the
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Issuers and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Senior Subordinated Exchange Securities equal
in principal amount to the principal amount of the Registrable
Securities surrendered by such Holder.
The Issuers and the Guarantors shall use their reasonable best 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 and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff.
(b) In the event that (i) the Issuers and the Guarantors determine that
the Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last Exchange
Date because it would violate any applicable law or applicable interpretations
of the Staff, (ii) the Exchange Offer is not for any other reason completed by
the date that is 270 days after the Closing Date or (iii) the Exchange Offer has
been completed and, in the reasonable opinion of counsel for the Initial
Purchasers, a Registration Statement must be filed and a Prospectus must be
delivered by the Initial Purchasers in connection with any offer or sale of
Registrable Securities originally purchased and still held by the Initial
Purchasers, the Issuers and the Guarantors shall use their reasonable best
efforts to cause to be filed as soon as practicable after such determination,
date or request, as the case may be, a Shelf Registration Statement providing
for the sale of all the Registrable Securities by the Holders thereof and to
have such Shelf Registration Statement declared effective by the SEC. To the
extent a Shelf Registration Statement is required to be filed pursuant to clause
(ii) and the Exchange Offer is completed on a date which is later than 270 days
after the Closing Date, upon the completion of the Exchange Offer, the Issuers
and the Guarantors will no longer be required to file such Shelf Registration
Statement, have such Shelf Registration Statement declared effective or continue
the effectiveness of such Shelf Registration Statement, except as may be
required pursuant to clause (i) or (iii).
In the event that the Issuers and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Issuers and the Guarantors shall use their reasonable best efforts to file
and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
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The Issuers and the Guarantors agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) (or any similar rule
then in force, but not Rule 144A) under the Securities Act with respect to the
Registrable Securities or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or are no longer outstanding
(the "Shelf Effectiveness Period"). The Issuers and the Guarantors further agree
to supplement or amend the Shelf Registration Statement and the related
Prospectus if required by the rules, regulations or instructions applicable to
the registration form used by the Issuers for such Shelf Registration Statement
or by the Securities Act or by any other rules and regulations thereunder for
shelf registration or if reasonably and timely requested by a Holder of
Registrable Securities with respect to information relating to such Holder, and
to use their reasonable best efforts to cause any such amendment to become
effective and such Shelf Registration Statement and Prospectus to become usable
as soon as thereafter practicable; PROVIDED that in the case of amendments (but
not supplements) to the Shelf Registration Statement and the related Prospectus,
the Issuers and Guarantors shall not be required to amend the Shelf Registration
Statement and related Prospectus to add additional Holders more than three times
per calendar quarter. The Issuers and the Guarantors agree to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The Issuers and the Guarantors shall pay all Registration Expenses
in connection with any registration pursuant to Section 2(a) or Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions,
brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) 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.
In the event that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required hereby, is not declared effective on
or prior to the date that is 270 days after the Closing Date (the "Target
Registration Date"), the interest rate on the Registrable Securities will be
increased by (i) 0.50% per annum for the first 90-day period immediately
following the Target Registration Date and (ii) an additional 0.50% per annum
with respect to each subsequent 90-day period, in each case until the Exchange
Offer is completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely tradable under the
Securities Act, up to a maximum of 1.00% per annum of additional interest.
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If the Shelf Registration Statement, if required hereby, has been
declared effective and thereafter either ceases to be effective or the
Prospectus contained therein ceases to be usable at any time during the Shelf
Effectiveness Period, and such failure to remain effective or usable exists for
more than 60 days (whether or not consecutive) in any 12-month period, then the
interest rate on the Registrable Securities will be increased by 1.00% per annum
commencing on the 61st day in such 12-month period and ending on such date that
the Shelf Registration Statement has again been declared effective or the
Prospectus again becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Issuers and the Guarantors acknowledge that any failure by
the Issuers or the Guarantors to comply with their obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Issuers' and
the Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
3. REGISTRATION PROCEDURES. (a) In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Issuers and the Guarantors
shall:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Issuers and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities by the selling Holders
thereof and (z) 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; and use their reasonable best efforts
to cause such Registration Statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof;
(ii) 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 applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Senior Subordinated Exchange Securities;
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(iii) in the case of a Shelf Registration, furnish to each selling
Holder of Registrable Securities, to counsel for the Initial Purchasers, to
counsel for such Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus as reasonably requested, including each preliminary Prospectus, and
any amendment or supplement thereto, in order to facilitate the sale or other
disposition of the Registrable Securities thereunder; and the Issuers and the
Guarantors consent to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law and this Agreement by each of the
selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law and this Agreement;
(iv) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with such Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; PROVIDED that none of the Issuers or Guarantors
shall be required to (1) qualify as a foreign corporation or other entity or as
a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (2) file any general consent to service of process in
any such jurisdiction or (3) subject itself to taxation in any such jurisdiction
if it is not so subject;
(v) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (1) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (2) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(3) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (4) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of either Issuer or any
Guarantor contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if either
Issuer or any Guarantor receives any notification with respect to the suspension
of the qualification of the
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Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (5) of the happening of any event during the period
a Shelf Registration Statement is effective that makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or that requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and (6) of any determination by either Issuer or any Guarantor that a
post-effective amendment to a Registration Statement would be appropriate;
(vi) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
possible and promptly provide notice to each Holder of the withdrawal of any
such order;
(vii) in the case of a Shelf Registration, if required, furnish to each
Holder of Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless
requested);
(viii) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indenture) as such selling Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable
Securities;
(ix) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(a)(v)(5) hereof, use their reasonable best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to such Shelf 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 purchasers of the Registrable Securities,
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 the Issuers
and the Guarantors shall notify the Holders of Registrable Securities to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and such Holders hereby agree to suspend use of the Prospectus until the
Issuers and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission.
(x) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by
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reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and make
such of the representatives of the Issuers and the Guarantors as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities or
their counsel) available for discussion of such document; and the Issuers and
the Guarantors shall not, at any time after initial filing of a Registration
Statement, file any Prospectus, any amendment of or supplement to a Registration
Statement or a Prospectus, or any document that is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities and their counsel) shall not
have previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities or their counsel) shall reasonably object
within 48 hours of receipt;
(xi) obtain a CUSIP number for all Senior Subordinated Exchange
Securities or Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture Act
in connection with the registration of the Senior Subordinated Exchange
Securities or Registrable Securities, as the case may be; cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and execute, and use their reasonable best efforts to
cause the Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(xiii) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of a majority in principal amount
of the Registrable Securities being sold (an "Inspector"), which Inspector shall
be reasonably acceptable to the Issuers, any Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, any attorneys and
accountants designated by the Holders of a majority in principal amount of the
Registrable Securities being sold and any attorneys and accountants designated
by such Underwriter, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the Issuers
and the Guarantors, and cause the respective officers, directors and employees
of the Issuers and the Guarantors to supply all information reasonably requested
by any such Inspector, Underwriter, attorney or accountant in connection with a
Shelf Registration Statement; PROVIDED that if any such information is
identified by either Issuer or any Guarantor as being confidential or
proprietary, each Person
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receiving such information shall take such actions as are reasonably necessary
to protect the confidentiality of such information (including such action as may
be necessary to ensure that such disclosures are made in a manner compliant with
the requirements of Regulation FD) to the extent such action (other than such
action necessary to ensure that such disclosures are made in a manner compliant
with the requirements of Regulation FD) is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of any Inspector,
Holder or Underwriter;
(xiv) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange or any automated quotation system on which similar securities issued or
guaranteed by either Issuer or any Guarantor are then listed if requested by the
Majority Holders, to the extent such Registrable Securities satisfy applicable
listing requirements;
(xv) if reasonably requested by any Holder of Registrable Securities
covered by a Shelf Registration Statement, promptly include in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as the Issuers have received notification of the matters to be so
included in such filing; PROVIDED that in the case of amendments (but not
supplements) to the Shelf Registration Statement and the related Prospectus, the
Issuers and Guarantors shall not be required to amend the Shelf Registration
Statement and related Prospectus to add additional Holders more than three times
per calendar quarter; and
(xvi) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, not
more than one Underwritten Offering and in such connection, (1) to the extent
possible, make such representations and warranties to the Holders and any
Underwriters of such Registrable Securities with respect to the business of the
Issuers and their subsidiaries and the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings, (2) obtain opinions of counsel to the
Issuers and the Guarantors (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders and such Underwriters
and their respective counsel) addressed to each selling Holder and Underwriter
of Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (3) obtain "comfort" letters from the
independent certified public accountants of the Issuers and the Guarantors (and,
13
if necessary, any other certified public accountant of any subsidiary of either
Issuer or any Guarantor, or of any business acquired by either Issuer or any
Guarantor for which financial statements and financial data are or are required
to be included in the Registration Statement) addressed to each selling Holder
and Underwriter of Registrable Securities, such letters to be in customary form
and covering matters of the type customarily covered in "comfort" letters in
connection with underwritten offerings and (4) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Issuers and the
Guarantors made pursuant to clause (1) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
(b) In the case of a Shelf Registration Statement, the Issuers may
require each Holder of Registrable Securities, as a condition to the inclusion
of such Holder's Registrable Securities in a Shelf Registration Statement, to
furnish to the Issuers such information in writing within 20 days after receipt
of a request therefore regarding such Holder and the proposed disposition by
such Holder of such Registrable Securities as the Issuers and the Guarantors may
reasonably request in writing. In addition, each selling Holder agrees to
promptly furnish additional information required to be disclosed in order to
make the information previously furnished to the Issuers not materially
misleading.
(c) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Issuers
and the Guarantors of the happening of any event of the kind described in
Section 3(a)(v)(3) or 3(a)(v)(5) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Shelf Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(a)(ix) hereof and, if so directed
by the Issuers and the Guarantors, such Holder will deliver to the Issuers and
the Guarantors all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities that is current at the time of receipt of such notice.
Notwithstanding anything herein to the contrary, the Issuers and the Guarantors
may allow the Shelf Registration Statement to cease to be effective if the board
of directors or managers, as applicable, of the Issuers determines in good faith
(and not for the purpose of avoiding or limiting the obligations of the Issuers
or Guarantors under this Agreement) that it is in the best interests of the
Issuers not to disclose the existence of facts surrounding any proposed or
pending material corporate transaction involving the Issuers or the Guarantors,
and the Issuers notify the Holders of Registrable Securities promptly after such
board of directors or manager, as applicable, makes such determination;
provided, however, that the period referred to in section 2(b) during which the
Issuers and the Guarantors agree to use their reasonable best efforts to keep
such Shelf Registration
14
Statement effective shall be extended by the number of days during which such
Shelf Registration Statement was not effective pursuant to the foregoing
provision.
(d) If the Issuers and the Guarantors shall give any notice pursuant to
Section 3(c) hereof to suspend the disposition of Registrable Securities
pursuant to a Shelf Registration Statement, the Issuers and the Guarantors shall
extend the period during which such Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders of such Registrable Securities shall have received
copies of the supplemented or amended Prospectus necessary to resume such
dispositions. The Issuers and the Guarantors may give any such notice only twice
during any 365-day period, such suspensions shall not exceed 45 days for each
suspension and 75 days in the aggregate during any 365-day period and there
shall not be more than two suspensions in effect during any 365-day period.
(e) The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
bank or investment banks and manager or managers (each an "Underwriter") that
will administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering.
4. PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER. (a) The Staff has
taken the position that any broker-dealer that receives Senior Subordinated
Exchange Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of market-making
or other trading activities (a "Participating Broker-Dealer") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Senior Subordinated Exchange Securities.
The Issuers and the Guarantors understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the Senior
Subordinated Exchange Securities, without naming the Participating
Broker-Dealers or specifying the amount of Senior Subordinated Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Senior Subordinated Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
15
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Issuers and the Guarantors agree to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement until the
earlier of (i) such time as the Participating Broker-Dealers shall have disposed
of the Registrable Securities and (ii) 180 days after the closing of the
Exchange Offer (as such period may be extended pursuant to Section 3(d) of this
Agreement), if requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in order to expedite or facilitate the disposition
of any Senior Subordinated Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above. The
Issuers and the Guarantors further agree that Participating Broker-Dealers shall
be authorized to deliver such Prospectus during such period in connection with
the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to either Issuer,
any Guarantor or any Holder with respect to any request that they may make
pursuant to Section 4(b) above.
5. INDEMNIFICATION AND CONTRIBUTION. (a) Each Issuer and each
Guarantor, jointly and severally, agree to indemnify and hold harmless each
Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each Person, if any, who controls any Initial Purchaser or any
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or any Prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser or information relating to any Holder furnished to the Issuers in
writing through JPMorgan or any selling Holder expressly for use therein;
PROVIDED, that with respect to any such untrue statement in or omission from any
preliminary prospectus, the indemnity agreement contained in this Section 5(a)
shall not inure to the benefit of any Initial Purchaser or any Holder to the
extent that the sale to the person asserting any such losses, claims, damages or
liability was an initial resale by such Initial Purchaser or Holder and any such
losses, claims, damages or liability of or with respect to such Initial
Purchaser or Holder results from the fact that both (i) a copy of the final
prospectus that was required to be sent or given to such person was not sent or
given to such a person at or prior to the written confirmation of the sale of
such Securities to such person and (ii) the untrue statement in or omission from
the related preliminary prospectus was corrected in the final
16
prospectus unless, in either case, such failure to deliver the final prospectus
was a result of non-compliance by the Issuers or the Guarantors with the
provisions of Section 3. In connection with any Underwritten Offering permitted
by Section 3, the Issuers and the Guarantors, jointly and severally, will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
respective affiliates and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, the Guarantors, the Initial Purchasers and the other
selling Holders, the directors of the Issuers and the Guarantors, each officer
of the Issuers and the Guarantors who signed the Registration Statement and each
Person, if any, who controls the Issuers, the Guarantors, any Initial Purchaser
and any other selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Holder furnished to
the Issuers in writing by such Holder expressly for use in any Registration
Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; PROVIDED that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
PROVIDED, FURTHER, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to
17
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii)
counsel for the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified Persons,
and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm (x) for any Initial Purchaser, its affiliates, directors
and officers and any control Persons of such Initial Purchaser shall be
designated in writing by JPMorgan, (y) for any Holder, its directors and
officers and any control Persons of such Holder shall be designated in writing
by the Majority Holders and (z) in all other cases shall be designated in
writing by the Issuers. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying
Person shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such
18
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Guarantors from the offering of the Securities and the Senior
Subordinated Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Senior Subordinated Exchange Securities registered under
the Securities Act, on the other hand, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Issuers and the Guarantors on the one hand
and the Holders on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Issuers and the
Guarantors on the one hand and the Holders on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers and the Guarantors or by the
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Issuers, the Guarantors and the Holders agree that it would not
be just and equitable if contribution pursuant to this Section 5 were determined
by PRO RATA allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Senior Subordinated Exchange Securities sold by
such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Issuers or the Guarantors or
the officers or directors of or any Person controlling the Issuers or the
Guarantors, (iii)
19
acceptance of any of the Senior Subordinated Exchange Securities and (iv) any
sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. GENERAL.
(a) NO INCONSISTENT AGREEMENTS. Each of the Issuers and the Guarantors
represents, warrants and agrees that (i) 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 any other outstanding securities issued or
guaranteed by either of the Issuers or any Guarantor under any other agreement
and (ii) none of the Issuers or Guarantors has entered into, or on or after the
date of this Agreement will enter into, any agreement that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Issuers and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; PROVIDED that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments, modifications, supplements, waivers or
consents pursuant to this Section 6(b) shall be by a writing executed by each of
the parties hereto.
(c) 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 Issuers by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to the
Issuers and the Guarantors, initially at the Issuers' address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c); and (iii) to such
other persons at their respective addresses as provided in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c). 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
20
by the Person giving the same to the Trustee, at the address specified in the
Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities 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. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Issuers or the Guarantors with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations of
such Holder under this Agreement.
(e) THIRD PARTY BENEFICIARIES. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Issuers and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(j) MISCELLANEOUS. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
21
affected, impaired or invalidated. The Issuers, the Guarantors and the Initial
Purchasers shall endeavor in good faith negotiations to replace the invalid,
void or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, void or unenforceable
provisions.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BOISE CASCADE, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE CASCADE FINANCE CORPORATION,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE CASCADE HOLDINGS, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE WHITE PAPER, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE PACKAGING & NEWSPRINT, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
23
BOISE BUILDING SOLUTIONS
MANUFACTURING, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE BUILDING SOLUTIONS
DISTRIBUTION, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE LAND & TIMBER HOLDINGS CORP.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE LAND & TIMBER CORP.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE BUILDING SOLUTIONS
MANUFACTURING HOLDINGS CORP.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
24
BC CHILE INVESTMENT CORPORATION,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BC BRAZIL INVESTMENT CORPORATION,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE WHITE PAPER HOLDINGS CORP.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
MINNESOTA, DAKOTA & WESTERN RAILWAY COMPANY,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
INTERNATIONAL FALLS POWER COMPANY,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
25
BC CHINA CORPORATION,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE CASCADE TRANSPORTATION
HOLDINGS CORP.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BCT, INC.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE CASCADE AVIATION, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE CENTRAL WASHINGTON LAND &
TIMBER, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
26
BOISE NORTHEAST WASHINGTON LAND &
TIMBER, L.L.C.,
by /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE NORTHWEST OREGON LAND &
TIMBER, L.L.C.,
By /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE SOUTHERN OREGON LAND &
TIMBER, L.L.C.,
By /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE NORTHEAST OREGON LAND &
TIMBER, L.L.C.,
By /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE IDAHO LAND & TIMBER, L.L.C.,
By /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
27
BOISE MINNESOTA LAND & TIMBER, L.L.C.,
By /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE LOUISIANA LAND & TIMBER, L.L.C.,
By /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
BOISE ALABAMA LAND & TIMBER, L.L.C.,
By /s/ Xxx Xxxxxxx
___________________________________
Name: Xxx Xxxxxxx
Title: Chief Financial Officer
28
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By /s/ [Illegible]
___________________________
Authorized Signatory
29
Schedule 1
GUARANTORS
Boise Cascade Holdings, L.L.C.
Boise White Paper, L.L.C.
Boise Packaging & Newsprint, L.L.C.
Boise Building Solutions Manufacturing, L.L.C.
Boise Building Solutions Distribution, L.L.C.
Boise Land & Timber Holdings Corp.
Boise Land & Timber Corp.
Boise Building Solutions Manufacturing Holdings Corp.
BC Chile Investment Corporation
BC Brazil Investment Corporation
Boise White Paper Holdings Corp.
Minnesota, Dakota & Western Railway Company
International Falls Power Company
BC China Corporation
Boise Cascade Transportation Holdings Corp.
BCT, Inc.
Boise Cascade Aviation, L.L.C.
Boise Central Washington Land & Timber, L.L.C.
Boise Northeast Washington Land & Timber, L.L.C.
Boise Northwest Oregon Land & Timber, L.L.C.
Boise Southern Oregon Land & Timber, L.L.C.
Boise Northeast Oregon Land & Timber, L.L.C.
Boise Idaho Land & Timber, L.L.C.
Boise Minnesota Land & Timber, L.L.C.
Boise Louisiana Land & Timber, L.L.C.
Boise Alabama Land & Timber, L.L.C.
