Exhibit 1.1
EXECUTION COPY
===============================================================================
REGISTRATION RIGHTS AGREEMENT
XXXXXXX GROUP, INC.
as Issuer
EACH OF THE GUARANTORS PARTY HERETO
as Guarantors
$100,000,000 SECOND PRIORITY SENIOR SECURED FLOATING RATE NOTES DUE 2011
$315,000,000 10% SENIOR SUBORDINATED NOTES DUE 2012
Dated as of April 23, 2004
___________________
CREDIT SUISSE FIRST BOSTON LLC,
BANC ONE CAPITAL MARKETS, INC.
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
This Registration Rights Agreement (this "Agreement") is made and entered
into as of April 23, 2004, by and among Xxxxxxx Group, Inc., a Delaware
corporation (the "Company"), each of the Guarantors party hereto (collectively,
the "Guarantors"), and Credit Suisse First Boston LLC, Banc One Capital
Markets, Inc., Deutsche Bank Securities Inc., and X.X. Xxxxxx Securities Inc.
(collectively, the "Initial Purchasers"), who have agreed to purchase the
Company's Second Priority Senior Secured Floating Rate Notes due 2011 (the
"Secured Notes") and the Company's 10% Senior Subordinated Notes due 2012 (the
"Subordinated Notes," and, together with the Secured Notes, the "Initial
Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated April 8,
2004 (the "Purchase Agreement"), by and among the Company, the Guarantors and
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Notes, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 6
of the Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the Indenture, dated as of
April 23, 2004 (the "Secured Notes Indenture"), among the Company, the
Guarantors and Wachovia Bank, National Association, as Trustee (the "Trustee"),
relating to the Secured Notes (to the extent related to the Secured Notes) the
Indenture dated as of April 23, 2004 (the "Subordinated Notes Indenture"),
among the Company, the Guarantors and the Trustee relating to the Subordinated
Notes (to the extent related to the Subordinated Notes). The Secured Notes
Indenture and the Subordinated Notes Indenture are collectively referred to as
the "Indentures."
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144.
Affiliated Market Maker: A Broker-Dealer or one of its Affiliates who is
deemed to be an Affiliate of the Company and intends to make a market in the
Exchange Notes.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Definitive Notes, as defined in the Indentures.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Exchange
Notes to be issued in the Exchange Offer, (b) the keeping of the Exchange Offer
open for a period not less than the period required pursuant to Section 3(b)
hereof and (c) the delivery by the Company to the Registrar under the Secured
Notes Indenture of Secured Exchange Notes (as defined below) and under the
Subordinated Notes Indenture of Subordinated Exchange Notes (as defined below)
in the same aggregate principal
amount as the aggregate principal amount of Secured Notes and Subordinated
Notes, respectively, validly tendered and not withdrawn by Holders (as defined
below) thereof pursuant to the Exchange Offer.
Consummation Date: The date on which the Exchange Offer is Consummated.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Company's Second Priority Senior Secured Floating Rate
Exchange Notes due 2011 (the "Secured Exchange Notes") and the Company's 10%
Senior Subordinated Exchange Notes due 2012 (the "Subordinated Exchange Notes")
to be issued pursuant to the Secured Notes Indenture or Subordinated Notes
Indenture, as applicable (i) in the Exchange Offer or (ii) as contemplated by
Section 6(b) hereof.
Exchange Offer: The exchange and issuance by the Company of a principal
amount of Secured Exchange Notes and Subordinated Exchange Notes (which shall
be registered pursuant to the Exchange Offer Registration Statement) equal to
the aggregate principal amount of Secured Notes and Subordinated Notes,
respectively, that are validly tendered and not withdrawn in connection with
such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Liquidated Damages: As defined in Section 5 hereof.
Notes: The Initial Notes and the Exchange Notes together.
Participating Broker Dealer: As defined in Section 3(a) hereof.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and the
Guarantors relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein and all exhibits thereto.
2
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb), as
in effect on the date of the Indentures.
Transfer Restricted Securities: Each (a) Initial Note, until the earliest
to occur of (i) the date on which such Initial Note is exchanged in the
Exchange Offer for an Exchange Note that is entitled to be resold to the public
by the holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (ii) the date on which such Initial Note
has been disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Exchange Notes), and (iii) the date on
which such Initial Note is distributed to the public pursuant to Rule 144 under
the Act and (b) Exchange Note issued to a Participating Broker-Dealer in the
Exchange Offer until the date on which such Exchange Note is disposed of by
such Participating Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person is the holder of record of Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law or Commission policy (after the procedures set forth in Section 6(a)(i)
hereof have been complied with), the Company and the Guarantors shall use their
respective reasonable best efforts to (i) cause the Exchange Offer Registration
Statement to be filed with the Commission as promptly as practicable after the
Closing Date, but in no event later than 90 days after the Closing Date (such
90th day, the "Filing Deadline"), (ii) cause such Exchange Offer Registration
Statement to become effective as promptly as practicable, but in no event later
than 180 days after the Closing Date (such 180th day, the "Effectiveness
Deadline"), (iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause it to become effective, and (B) subject to the proviso in
Section 6(c)(xii) hereof, cause all necessary filings, if any, in connection
with the registration and qualification of the Exchange Notes to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit Consummation
of the Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and, within the time periods contemplated by
Section 3(b) hereof, Consummate the Exchange Offer. The Exchange Offer shall be
on the appropriate form permitting (i) registration of the Exchange Notes to be
offered in exchange for the Initial Notes that are Transfer Restricted
Securities and (ii) resales of Exchange Notes by Broker-Dealers that tendered
into the Exchange Offer Initial Notes that such Broker-Dealer acquired for its
own account as a result of its market-making activities or other trading
activities (other than Initial Notes acquired directly from the Company or any
of its Affiliates) as contemplated by Section 3(c) hereof (each, a
"Participating Broker Dealer").
3
(b) The Company and the Guarantors shall use their respective reasonable
best efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided that in no event shall such
period be less than 20 Business Days. The Company and the Guarantors shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Exchange Notes (and the
guarantees thereof) shall be included in the Exchange Offer Registration
Statement. The Company and the Guarantors shall use their respective reasonable
best efforts to cause the Exchange Offer to be Consummated within 30 Business
Days after the Exchange Offer Registration Statement has become effective, but
in no event later than 40 Business Days after the Effectiveness Deadline (such
40th day, the "Consummation Deadline").
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Initial Notes
acquired directly from the Company or any of its Affiliates), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission.
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Company and the
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement for a period of 90 days following the Consummation Date.
To the extent necessary to ensure that the Prospectus contained in the Exchange
Offer Registration Statement is available for sales of Exchange Notes by
Broker-Dealers, the Company and the Guarantors agree to use their respective
reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(a) and (c) hereof and in conformity
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
90 days from the Consummation Date or such shorter period as will terminate
when no Transfer Restricted Securities are outstanding. The Company and the
Guarantors shall provide sufficient copies of the latest version of such
Prospectus to such Broker-Dealers, promptly upon request, at any time during
such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law or Commission policy (after the Company and the Guarantors have
complied with the procedures set forth in Section 6(a)(i) hereof) or (ii) if
any Holder of Transfer Restricted Securities shall notify the Company in
writing within 20 Business Days following the Consummation Deadline that (A)
based on an opinion of counsel, such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer or (B) such Holder is a
Broker-Dealer and holds Initial Notes acquired directly from the Company or any
of its Affiliates or is an Affiliate Market Maker, then the Company and the
Guarantors shall:
4
(x) cause to be filed, on or prior to 90 days after the earlier of
(i) the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of Section 4(a)(i)
hereof and (ii) the date on which the Company receives the notice
specified in Section 4(a)(ii) hereof (90 days after such earlier date, the
"Filing Deadline"), a shelf registration statement (the "Shelf
Registration Statement") pursuant to Rule 415 under the Act (which may be
an amendment to the Exchange Offer Registration Statement) relating to (1)
all Transfer Restricted Securities in the case of clause (a)(i) above or
(2) the Transfer Restricted Securities specified in any notice in the case
of clause (a)(ii) above; and
(y) shall use their respective reasonable best efforts to cause such
Shelf Registration Statement to become effective on or prior to 90 days
after the Filing Deadline for the Shelf Registration Statement (such 90th
day, the "Effectiveness Deadline"), (clauses (x) and (y) together, the
"Shelf Registration").
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) hereof, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., Section
4(a)(i) hereof), then the filing of the Exchange Offer Registration Statement
shall be deemed to satisfy the requirements of clause (x) above; provided that,
in such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company and
the Guarantors shall use their respective reasonable best efforts to keep any
Shelf Registration Statement required by this Section 4(a) continuously
effective, supplemented, amended and current as required by and subject to the
provisions of Sections 6(b) and (c) hereof and in conformity with the
requirements of this Agreement, the Act (including, but not limited to, Section
10 of the Act and Items 507 and 508 of Regulation S-K under the Act) and the
policies, rules and regulations of the Commission as announced from time to
time, until the later of (a) the date on which no Broker Dealer making a market
in the Exchange Notes is deemed to be an Affiliate of the Company, and (b) the
earlier of the second anniversary of the Closing Date (as such date may be
extended pursuant to Section 6(d) hereof) and such earlier date when no
Transfer Restricted Securities covered by such Shelf Registration Statement
remain outstanding.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
(c) Holders of Transfer Restricted Securities that do not give the written
notice within the 20 Business Day period set forth in Section 4(a)(ii) hereof,
if required to be given, will no longer have any registration rights pursuant
to this Section 4 and will not be entitled to any Liquidated Damages pursuant
to Section 5 hereof in respect of the Company's obligations with respect to the
Shelf Registration
5
Statement. Notwithstanding the foregoing, no Broker-Dealer that is an Affiliate
of the Company shall be required to give such written notice or deliver an
opinion in order to maintain its registration rights pursuant to this Section
4.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any
such Registration Statement has not been declared effective by the Commission
on or prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer
(if required) has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose during the period it is required to be
effective pursuant to the terms hereof without being succeeded within ten
Business Days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective within ten Business
Days of filing such post-effective amendment to such Registration Statement
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), then the Company and the Guarantors hereby jointly and severally
agree to pay to each Holder of Transfer Restricted Securities affected thereby
liquidated damages ("Liquidated Damages") in an amount equal to $0.05 per week
per $1,000 principal amount of Transfer Restricted Securities held by such
Holder for the first 90-day period immediately following the occurrence of such
Registration Default. The amount of the Liquidated Damages shall increase by an
additional $0.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
Liquidated Damages of $0.25 per week per $1,000 principal amount of Transfer
Restricted Securities held by such Holder; provided that the Company and the
Guarantors shall in no event be required to pay Liquidated Damages for more
than one Registration Default with respect to the Secured Notes or Subordinated
Notes, as applicable at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the
case of (i) above, (2) upon the effectiveness of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, or (5) if sooner, upon the first date on which no
Transfer Restricted Securities remain outstanding, in the case of clauses (i)
through (iv) above, the Liquidated Damages payable with respect to the Transfer
Restricted Securities as a result of such clause (i), (ii), (iii) or (iv), as
applicable, shall cease.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Secured
Notes Indenture or Subordinated Notes Indenture, as applicable, on each
Interest Payment Date, as more fully set forth in the applicable Indenture and
the Notes. Notwithstanding the fact that any securities for which Liquidated
Damages are due cease to be Transfer Restricted Securities, all obligations of
the Company and the Guarantors to pay Liquidated Damages with respect to
securities that accrued prior to the time such securities ceased to be Transfer
Restricted Securities shall survive until such time as such obligations with
respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company and the Guarantors shall (x) comply with all applicable
provisions of Section 6(c) hereof, (y)
6
use their respective reasonable best efforts to effect such exchange and to
permit the resale of Exchange Notes by Participating Broker-Dealers that
tendered in the Exchange Offer Initial Notes that such Broker-Dealer acquired
for its own account as a result of its market-making activities or other
trading activities (other than Initial Notes acquired directly from the Company
or any of its Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of the following
provisions:
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers, such as the Exchange
Offer, that, in the opinion of counsel to the Company, raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company and the Guarantors hereby agree to
seek a no-action letter or other favorable decision from the Commission
allowing the Company and the Guarantors to Consummate an Exchange Offer
for such Transfer Restricted Securities. The Company and the Guarantors
hereby agree to use their respective reasonable best efforts in pursuing
the issuance of such a decision to the Commission staff level.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker-Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (which may be contained
in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that, at the time of Consummation of
the Exchange Offer, (A) any Exchange Notes received by such Holder will be
acquired in the ordinary course of its business, (B) such Holder will have
no arrangement or understanding with any person to participate in the
distribution of the Initial Notes or the Exchange Notes within the meaning
of the Act, (C) if the Holder is not a Broker-Dealer or is a Broker-Dealer
but will not receive Exchange Notes for its own account in exchange for
Initial Notes, neither the Holder nor any such other Person is engaged in
or intends to participate in a distribution of the Exchange Notes, and (D)
that such Holder is not an Affiliate of the Company. If the Holder is a
Broker-Dealer that will receive Exchange Notes for its own account in
exchange for Initial Notes, it will represent that the Notes to be
exchanged for the Exchange Notes were acquired by it as a result of its
market-making activities or other trading activities, and will acknowledge
that it will deliver a prospectus meeting the requirements of the Act in
connection with any resale of such Exchange Notes. It is understood that,
by acknowledging that it will deliver, and by delivering, a prospectus
meeting the requirements of the Act in connection with any resale of such
Exchange Notes, the Holder is not admitting that it is an "underwriter"
within the meaning of the Act.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Company and the Guarantors
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May
13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993, and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that neither the Company
nor any Guarantor has entered into any arrangement or understanding with
any Person to distribute the Exchange Notes to be received in the Exchange
Offer and that, to the best of the Company's and each Guarantors'
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
7
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) hereof and use
their respective reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to Section
4(b) hereof), and pursuant thereto the Company and the Guarantors will
prepare and file with the Commission a Registration Statement relating to
the registration on any appropriate form under the Act, which form shall
be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof, and
(ii) issue, upon the request of any Holder or purchaser of Secured
Notes or Subordinated Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Secured Exchange Notes or Subordinated
Exchange Notes having an aggregate principal amount equal to the aggregate
principal amount of Secured Notes or Subordinated Notes, respectively,
sold pursuant to the Shelf Registration Statement and surrendered to the
Company for cancellation; the Company shall register Exchange Notes on the
Shelf Registration Statement for this purpose and issue the Exchange Notes
to the purchaser(s) of securities subject to the Shelf Registration
Statement in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Company and the
Guarantors shall, during the periods specified in Sections 3 and 4 hereof, as
applicable:
(i) use their respective reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or (B) not to
be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company and the
Guarantors shall file promptly an appropriate amendment to such
Registration Statement or a supplement to the Prospectus, as applicable,
curing such defect, and, in the case of an amendment, use their respective
reasonable best efforts to cause such amendment to be declared effective
as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) advise each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement (in the case of the Shelf
Registration Statement) and Affiliated Market
8
Maker promptly and, if requested by such Person, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
applicable Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes, and
(D) of the existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company and the Guarantors shall use their respective reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) subject to Section 6(d), if any fact or event contemplated by
Section 6(c)(iii)(D) hereof shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(v) furnish to each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement (in the case of the Shelf
Registration Statement) and each Affiliated Market Maker in connection
with such sale, if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial
filing of such Registration Statement), which documents (other than
Exchange Act Reports incorporated by reference therein or filed as
supplements thereto) will be subject to the review and comment of such
Persons, if any, for a period of at least five Business Days, and the
Company will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Persons shall reasonably object within five Business Days after the
receipt thereof. Such Persons shall be deemed to have reasonably objected
to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading or fails to comply with the
applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus
(other than Exchange Act Reports), provide copies of such document to each
Holder whose Transfer Restricted Securities have been included in a Shelf
9
Registration Statement (in the case of the Shelf Registration Statement)
and each Affiliated Market Maker in connection with such sale or exchange,
if any, make the Company's and the Guarantors' representatives available
for discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing thereof
as such Persons may reasonably request;
(vii) make available, at reasonable times, for inspection by each
Holder whose Transfer Restricted Securities have been included in a Shelf
Registration Statement (in the case of the Shelf Registration Statement)
and each Affiliated Market Maker and any attorney or accountant retained
by such Persons, all financial and other records, pertinent corporate
documents of the Company and the Guarantors and cause the Company's and
the Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Persons, attorney or
accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness;
(viii) if requested by any Holders whose Transfer Restricted
Securities have been included in a Shelf Registration Statement (in the
case of the Shelf Registration Statement) or any Affiliated Market Maker,
promptly include in any Registration Statement or Prospectus, pursuant to
a supplement or post-effective amendment if necessary, such information as
such Persons may reasonably request to have included therein, including,
without limitation, information relating to the "Plan of Distribution" of
the Transfer Restricted Securities and the use of the Registration
Statement or Prospectus for market-making activities; and make all
required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(ix) furnish to each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement (in the case of the Shelf
Registration Statement) in connection with such exchange or sale and each
Affiliated Market Maker, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each Holder whose Transfer Restricted Securities have
been included in a Shelf Registration Statement and each Affiliated Market
Maker without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company and the Guarantors hereby
consent to the use (in accordance with law and subject to Section 6(d)
hereof) of the Prospectus and any amendment or supplement thereto by each
selling Person in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto and all market-making activities of such Affiliated
Market Maker, as the case may be;
(xi) upon the request of any Holder whose Transfer Restricted
Securities have been included in a Shelf Registration Statement (in the
case of the Shelf Registration Statement) or the Initial Purchasers, enter
into such agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
such Person in connection with any sale or resale pursuant to any
applicable Registration Statement. In such connection, and also in
connection with market making activities by any Affiliated Market Maker,
the Company and the Guarantors shall:
10
(A) upon request of any such Person, furnish (or in the case of
paragraphs (2) and (3), use their respective reasonable best efforts to
cause to be furnished) to each Holder (in the case of the Shelf
Registration Statement) and the Initial Purchasers, upon Consummation of
the Exchange Offer or upon the effectiveness of the Shelf Registration
Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the
Company and each Guarantor by (x) the President or any Vice President
and (y) a principal financial or accounting officer of the Company
and such Guarantor, confirming, as of the date thereof, the matters
set forth in the officers' certificate to be delivered pursuant to
Section 6(i) of the Purchase Agreement and such other similar matters
as such Person may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Company and the
Guarantors covering matters similar to those set forth in Sections
6(c) through (g) of the Purchase Agreement and such other matters as
such Person may reasonably request, and in any event including a
statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company
and the Guarantors and representatives of the independent public
accountants for the Company and the Guarantors and have considered
the matters required to be stated therein and the statements
contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements;
and that such counsel advises that, on the basis of the foregoing
(relying as to materiality to the extent such counsel deems
appropriate upon the statements of officers and other representatives
of the Company and the Guarantors and without independent check or
verification), no facts came to such counsel's attention that caused
such counsel to believe that the applicable Registration Statement,
at the time such Registration Statement or any post-effective
amendment thereto became effective and, in the case of the Exchange
Offer Registration Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of its date
and, in the case of the opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may state further that such
counsel expresses no belief as to, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements and schedules and other financial and statistical data
derived therefrom, in any Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of Consummation
of the Exchange Offer, or as of the date of effectiveness of the
Shelf Registration Statement, as the case may be, from the Company's
independent accountants, in the customary form and covering matters
of the type customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and
11
affirming the matters set forth in the comfort letters delivered
pursuant to Section 6(a) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such Persons to evidence compliance with the
matters covered in clause (A) above and with any customary conditions
contained in any agreement entered into by the Company and the Guarantors
pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with
the registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions as the selling
Holders may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided that neither the Company nor any Guarantor shall be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is
not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and
such names as the selling Holders may request at least two Business Days
prior to such sale of Transfer Restricted Securities;
(xiv) use their respective reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xv) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Secured Notes Indenture or Subordinated Notes Indenture, as applicable,
with printed certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with The Depository Trust Company;
(xvi) otherwise use their respective reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to their security holders with regard to any
applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 under the Act
(which need not be audited) covering a twelve-month period beginning after
the effective date of the Registration Statement (as such term is defined
in Rule 158(c) under the Act); and
(xvii) cause the Indentures to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to each of the Indentures as may be
required for each such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its reasonable best efforts to cause
the Trustee to execute, all documents that may
12
be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable each such Indenture to
be so qualified in a timely manner.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from
the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such Person will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until (i) such Person has received copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(iv)
hereof, or (ii) such Person is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in
each case, the "Recommencement Date"). Each Person receiving a Suspension
Notice hereby agrees that it will either (i) destroy any Prospectuses, other
than permanent file copies, then in such Person's possession which have been
replaced by the Company with more recently dated Prospectuses or (ii) deliver
to the Company (at the Company's expense) all copies, other than permanent file
copies, then in such Person's possession of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of the
Suspension Notice. The time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall
be extended by a number of days equal to the number of days in the period from
and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors' performance
of or compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement becomes effective, including, without
limitation: (i) all registration and filing fees and expenses; (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses (whether for exchanges, sales, market-making or
otherwise), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and the Guarantors; (v) all
application and filing fees in connection with listing the Exchange Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company and the Guarantors.
(b) In connection with any Registration Statement required by this
Agreement, the Company and the Guarantors will reimburse the Initial Purchasers
and the Holders of Transfer Restricted Securities who are selling or reselling
Initial Notes or Exchange Notes pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or the Shelf
Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
13
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each holder of the
Notes, any Participating Broker-Dealer and each person, if any, who controls
such holder or such Participating Broker-Dealer within the meaning of the Act
or the Exchange Act (each holder of Notes, any Participating Broker-Dealer and
such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to sales of the Notes)
to which each Indemnified Party may become subject under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse, as incurred, the Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or prospectus or
in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration in reliance upon and in conformity with
written information pertaining to such holder of Notes and furnished to the
Company by or on behalf of such holder specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to a Shelf
Registration Statement, the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any holder of Notes or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages
or liabilities purchased the Notes concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such holder or
Participating Broker-Dealer under the Act in connection with such purchase and
any such loss, claim, damage or liability of such holder or Participating
Broker-Dealer results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the final prospectus if the Company had previously
furnished copies thereof to such holder or Participating Broker-Dealer;
provided further, however, that this indemnity agreement will be in addition to
any liability which the Company may otherwise have to such Indemnified Party.
The Company shall also indemnify underwriters, their officers and directors and
each person who controls such underwriters within the meaning of the Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the holders of the Notes if requested by such holders.
(b) Each holder of the Notes, severally and not jointly, will indemnify
and hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Act or the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect thereof, to which the
Company or any such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration, or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or omission or alleged untrue statement or omission
was made in reliance upon and in conformity with written information pertaining
to such holder of Notes and furnished to the Company by or on behalf of such
holder specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any
14
legal or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity agreement
will be in addition to any liability which such Holder may otherwise have to
the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve the indemnifying party from any
liability that it may have under subsection (a) or (b) above 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 party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Notes, pursuant to the
Exchange Offer, or (ii) if the allocation provided by the foregoing 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) above but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such holder of Notes or
such other indemnified party, as the case may be, on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding any other provision of
this Section 8(d), the holders of the Notes shall not be required to contribute
any amount in excess of the amount by which the net proceeds
15
received by such holders from the sale of the Notes pursuant to a Registration
Statement exceeds the amount of damages which such holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Act or the Exchange
Act shall have the same rights to contribution as such indemnified party and
each person, if any, who controls the Company within the meaning of the Act or
the Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 8 shall survive the sale of
the Notes pursuant to a Registration Statement and shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any indemnified party.
(f) The Company and the Guarantors agree that the indemnity and
contribution provisions of this Section 8 shall apply to the Affiliated Market
Makers to the same extent and on the same conditions, as it applies to holders
of the Notes.
SECTION 9. RULE 144A and RULE 144
The Company and each Guarantor agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in
which the Company or such Guarantor (i) is not subject to Section 13 or 15(d)
of the Exchange Act (unless exempt therefrom pursuant to Rule 12h-5), to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act (or exempt therefrom pursuant to Rule 12h-5), to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that
any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders or Affiliated
Market Makers 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 or Affiliated Market
Makers may obtain such relief as may be required to specifically enforce the
Company's and the Guarantors' obligations under Sections 3 and 4 hereof. The
Company and the Guarantors further agree to waive, to the extent permitted by
law, the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders 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
and the Guarantors' securities under any agreement in effect on the date
hereof.
16
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities affected thereby,
and (ii) in the case of all other provisions hereof, the Company has obtained
the written consent of Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities affected thereby (excluding Transfer
Restricted Securities held by the Company or its Affiliates unless all Holders
effected thereby are such Affiliates). Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to
the rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not being
tendered pursuant to such Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders and Affiliated Market Makers
shall be third party beneficiaries to the agreements made hereunder between the
Company 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 they may deem such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Secured Notes Indenture or the Subordinated Notes
Indenture, with a copy to the Registrar under the applicable Indenture;
and
(ii) if to the Initial Purchasers
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
(iii) if to the Company or the Guarantors:
Xxxxxxx Group, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
17
With a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
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
receipt 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 Secured Notes Indenture or Subordinated Notes
Indenture, as applicable.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Credit Suisse First
Boston LLC (in the form attached hereto as Exhibit A) and shall be addressed
to: Attention: Compliance Department, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without limitation, and without the need for an express assignment,
subsequent Holders; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the Secured Notes
Indenture or Subordinated Notes Indenture, as applicable. If any transferee of
any Holder shall acquire Transfer Restricted Securities in any manner, whether
by operation of law or otherwise, such Transfer Restricted Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Transfer Restricted 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, including the restrictions on resale set forth in this
Agreement and, if applicable, the Purchase Agreement, and such Person shall be
entitled to receive the benefits hereof.
(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 GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(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
18
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Compliance with Form S-3. The Company agrees for the benefit of any
Affiliated Market Makers that for so long as any of the Transfer Restricted
Securities remain outstanding, if at any time sales by the Affiliated Market
Makers of the Transfer Restricted Securities will satisfy clauses 1 or 3 of the
"Transaction Requirements" specified in Form S-3 (or any comparable provision
of any successor form to Form S-3), the Company will use its reasonable best
efforts to comply with, and maintain its compliance with, the "Registrant
Requirements" of Form S-3 (or any comparable provision of any successor form to
Form S-3).
[Signature Pages Follow]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXX GROUP, INC.
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President and
Chief Financial Officer
ANVIL STAR LLC
XXXXXXX INTERNATIONAL, INC.
XXXXXXX INTERNATIONAL, L.L.C.
XXXXXXX INTERNATIONAL FINANCE, INC.
XXXXXXX INTERNATIONAL FINANCE, L.L.C.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and
General Counsel
ANVIL INTERNATIONAL, INC.
XXXXXXX SERVICE CO.
XXXXXX METERS CO.
XXXXX XXXXX COMPANY
XXXXX XXXXX INTERNATIONAL LTD.
HYDRO GATE ACQUISITION CORP.
X.X. XXXXX MFG CO.
XXXXX XXXXX COMPANY
XXXXXXXX ACQUISITION CORP.
XXXXXXX CO.
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President and
Chief Financial Officer
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxx X. Warm
----------------------------------
Name: Xxxx X. Warm
Title: Managing Director
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. XxXxxxx
----------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
:
EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER REGISTRATION STATEMENT
To: Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Compliance Department
Fax: (000) 000-0000
From: Xxxxxxx Group, Inc.
000 Xxxxxxxxx Xxxxx, Xxxxx 00
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
Second Priority Senior Secured Floating Rate Notes due 2011
10% Senior Subordinated Notes due 2012
Date: __________, 200_
For your information only (NO ACTION REQUIRED):
Today, ___________, 200_, we filed [an Exchange Registration
Statement/a Shelf Registration Statement] with the Securities and Exchange
Commission.
