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REGISTRATION RIGHTS AGREEMENT
Dated as of February 20, 1998
Among
UNIVERSAL COMPRESSION HOLDINGS, INC.
as Issuer
and
BT XXXX XXXXX INCORPORATED
as Initial Purchaser
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$43,500,000 Aggregate Principal Amount at Maturity
11 3/8% SENIOR DISCOUNT NOTES DUE 2009
TABLE OF CONTENTS
Page
1. Definitions...................................................... 1
2. Exchange Offer................................................... 5
3. Shelf Registration............................................... 8
4. Liquidated Damages............................................... 9
5. Registration Procedures.......................................... 11
6. Registration Expenses............................................ 22
7. Indemnification.................................................. 24
8. Rule 144 and 144A................................................ 27
9. Underwritten Registrations....................................... 28
10. Miscellaneous.................................................... 28
(a) No Inconsistent Agreements............................. 28
(b) Adjustments Affecting Registrable Notes................ 29
(c) Amendments and Waivers................................. 29
(d) Notices................................................ 29
(e) Successors and Assigns................................. 30
(f) Counterparts........................................... 31
(g) Headings............................................... 31
(h) Governing Law.......................................... 31
(i) Severability........................................... 31
(j) Securities Held by the Company or Its Affiliates....... 31
(k) Third Party Beneficiaries.............................. 31
(l) Entire Agreement....................................... 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of February 20, 1998 by and among Universal Compression Holdings,
Inc., a Delaware corporation (the "Company"), and BT Alex. Xxxxx
Incorporated (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of February 13, 1998 by and among the Company and the
Initial Purchaser (the "Purchase Agreement") that provides for the sale by the
Company to the Initial Purchaser of $43,500,000 aggregate principal amount at
maturity of the Company's 11 3/8% Senior Discount Notes due 2009 (the "Notes").
In order to induce the Initial Purchaser to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a
condition to the Initial Purchaser's obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the first introductory paragraph hereto.
Applicable Period: See Section 2(b) hereof.
Closing Date: The Closing Date as defined in the Purchase Agreement.
Company: See the first introductory paragraph hereto.
Effectiveness Date: The date that is 210 days after the Issue Date.
Effectiveness Period: See Section 3(a) hereof.
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Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Registration Statement: See Section 2(a) hereof.
Filing Date: Within 90 days after the Issue Date.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of February , 1998 between
the Company and United States Trust Company of New York, as Trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchaser: See the first introductory paragraph hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: The date on which the original Notes were sold to
the Initial Purchaser pursuant to the Purchase Agreement.
NASD: See Section 5(t) hereof.
Notes: See the second introductory paragraph hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust,
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unincorporated association, union, business association, firm or other
legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note upon original issuance of the
Notes and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(v) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, until in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) a Registration Statement (other than, with respect to any Exchange
Note as to which Section 2(c)(v) hereof is applicable, the Exchange Registration
Statement) covering such Note, Exchange Note or Private Exchange Note, as the
case may be, has been declared effective by the SEC and such Note, Exchange Note
or Private Exchange Note, as the case may be, has been disposed of in accordance
with such effective Registration Statement, (ii) such Note, Exchange Note or
Private Exchange Note, as the case may be, is sold in compliance with Rule 144,
(iii) such Note has been exchanged for an Exchange Note or Exchange Notes
pursuant to an Exchange Offer and is entitled to be resold without complying
with the prospectus delivery requirements of the Securities Act or (iv) such
Note, Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
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Registration Statement: Any registration statement of the
Company under the Securities Act, including, but not limited to, the Exchange
Registration Statement and any registration statement filed in connection with a
Shelf Registration, filed with the SEC pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private
Exchange Notes (if any).
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
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2. Exchange Offer
(a) The Company shall file with the SEC, to the extent not
prohibited by any applicable law or applicable interpretation of the
staff of the SEC, no later than the Filing Date an offer to exchange
(the "Exchange Offer") any and all of the Registrable Notes (other than
the Private Exchange Notes, if any) for a like aggregate principal
amount of debt securities of the Company that are identical in all
material respects to the Notes (the "Exchange Notes") (and that are
entitled to the benefits of the Indenture or a trust indenture that is
identical in all material respects to the Indenture (other than such
changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or
maintain the qualification thereof under the TIA) and that, in either
case, has been qualified under the TIA), except that the Exchange Notes
(other than Private Exchange Notes, if any) shall have been registered
pursuant to an effective Registration Statement under the Securities Act
and shall contain no restrictive legend thereon. The Exchange Offer
shall be registered under the Securities Act on the appropriate form
(the "Exchange Registration Statement") and shall comply with all
applicable tender offer rules and regulations under the Exchange Act.
The Company agrees to use its best efforts to (x) cause the Exchange
Registration Statement to be declared effective under the Securities Act
on or before the Effectiveness Date; (y) keep the Exchange Offer open
for at least 20 business days (or longer if required by applicable law)
after the date that notice of the Exchange Offer is mailed to Holders;
and (z) consummate the Exchange Offer on or prior to the 240th day
following the Issue Date. If after such Exchange Registration Statement
is declared effective by the SEC, the Exchange Offer or the issuance of
the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Exchange Registration Statement shall
be deemed not to have become effective for purposes of this Agreement.
Each Holder who participates in the Exchange Offer will be required to
represent that any Exchange Notes received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of
the Exchange Offer such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Exchange Notes
in violation of the provisions of the Securities Act and that such
Holder is not an affiliate of the Company within the meaning of the
Securities Act and is not acting on behalf of any persons or entities
who could not truthfully make the foregoing representations. Upon
consummation of the Exchange Offer in accor-
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dance with this Section 2, the provisions of this Agreement shall continue
to apply, mutatis mutandis, solely with respect to Registrable Notes that are
Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers,
and the Company shall have no further obligation to register Registrable Notes
(other than Private Exchange Notes and other than in respect of any Exchange
Notes as to which clause 2(c)(v) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the Exchange
Registration Statement.
(b) The Company shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchaser, that
shall contain a summary statement of the positions taken or policies
made by the Staff of the SEC with respect to the potential "underwriter"
status of any broker-dealer that is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"),
whether such positions or policies have been publicly disseminated by
the staff of the SEC or such positions or policies, in the judgment of
the Initial Purchaser, represent the prevailing views of the Staff of
the SEC. Such "Plan of Distribution" section shall also expressly permit
the use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes.
The Company shall use its reasonable best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes; provided, however, that
such period shall not exceed 180 days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having, or that are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Company, upon the written request of the Initial
Purchaser simul-
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taneously with the delivery of the Exchange Notes in the Exchange
Offer, shall issue and deliver to the Initial Purchaser in exchange (the
"Private Exchange") for such Notes held by the Initial Purchaser a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and that
are issued pursuant to the same indenture as the Exchange Notes), except for the
placement of a restrictive legend on such Private Exchange Notes. The Private
Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York time, on the last business
day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws,
rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes properly tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes,
as the case may be, equal in princi-
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pal amount to the Notes of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that (1) the
Exchange Notes shall not be subject to the transfer restrictions set forth in
the Indenture and (2) the Private Exchange Notes shall be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Notes not exchanged in the Exchange Offer shall vote and consent together on
all matters as one class and that neither the Exchange Notes, the Private
Exchange Notes or such Notes will have the right to vote or consent as a
separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange
Offer Registration Statement or to consummate the Exchange Offer because
the Exchange Offer is not permitted by any applicable law or applicable
interpretation of the staff of the Commission or (ii) any holder of a
Note notifies the Company that (A) due to a change in law or policy it
is not entitled to participate in the Exchange Offer, (B) due to a
change in law or policy it may not resell Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and
the prospectus contained in the Exchange Registration Statement is not
appropriate or available for such resales by such holder or (C) it owns
Notes (including any Initial Purchaser that holds Notes as part of an
unsold allotment from the original offering of the Notes) acquired
directly from the Company or an affiliate of the Company or (iii) any
holder of Private Exchange Notes so requests after the consummation of
the Private Exchange or (iv) the Company has not consummated the
Exchange Offer within 240 days after the Issue Date (each such event
referred to in clauses (i) through (iv), a "Shelf Filing Event"), then
the Company shall promptly deliver written notice thereof (the "Shelf
Notice") to the Holders and the Trustee and shall file a Shelf
Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Company shall as promptly as
reasonably practicable file with the SEC a Registration Statement for an
offering to be made on a continuous
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basis pursuant to Rule 415 covering all of the Registrable Notes (the "Shelf
Registration"). If the Company shall not have yet filed an Exchange Registration
Statement, the Company
shall use its best efforts to file with the SEC the Shelf Registration
on or prior to the Filing Date. The Shelf Registration shall be on Form
S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more
underwritten offerings). The Company shall not permit any securities
other than the Registrable Notes to be included in the Shelf
Registration.
The Company shall use its best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Shelf Registration continuously effective
under the Securities Act until the date that is two years (or such shorter
period as may be established by any amendment to the two year period set forth
in Rule 144(k) under the Securities Act) from the Issue Date (the "Effectiveness
Period"), or such shorter period ending when all Registrable Notes covered by
the Shelf Registration have been sold in the manner set forth and as
contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration ceases
to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities
registered thereunder), the Company shall use its best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for
such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement
or by any underwriter of such Registrable Notes.
4. Liquidated Damages
(a) The Company and the Initial Purchaser agree that the
Holders of Registrable Notes will suffer damages if the Company fails to
fulfill its obligations under Section 2 or Section 3 hereof and that it
would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Company agrees to pay as liquidated damages,
additional inter-
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est on the notes (the "Liquidated Damages" or "Additional Interest")
under the circumstances and to the extent as follows (without
duplication):
(i) if (A) neither the Exchange Registration Statement nor the Shelf
Registration Statement has been filed with the SEC on or prior to the Filing
Date or (B) notwithstanding that the Company has consummated or will
consummate an Exchange Offer, the Company is required to file a Shelf
Registration Statement and such Shelf Registration Statement is not filed on
or prior to the date required hereunder, then commencing on the day after
either such required filing date, Liquidated Damages shall accrue on the
principal amount of the Notes at a rate of 0.5% per annum for the first 90
days immediately following each such filing date, such Liquidated Damages
rate increasing by an additional 0.5% per annum at the beginning of each
subsequent 90 day period; or
(ii) if (A) neither the Exchange Registration Statement nor the Shelf
Registration Statement has been declared effective on or prior to 210 days
after the Issue Date or (B) notwithstanding that the Company has consummated
or will consummate an Exchange Offer, the Company is required to file a
Shelf Registration Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the 210th day following the
Issue Date, then, commencing on the day after the 210th day following the
Issue Date, Liquidated Damages shall accrue on the principal amount of the
Notes at a rate of 0.5% per annum for the first 90 days immediately
following such date, such Liquidated Damages rate increasing by an
additional 0.5% per annum at the beginning of each subsequent 90-day period;
or; (iii) if (A) the Company has not exchanged the Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange Offer on
or prior to the 240th day after the Issue Date or (B) if applicable, the
Shelf Registration Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any time prior to the
second anniversary of its effective date (other than after such time as all
Notes have been disposed of thereunder), then Liquidated Damages shall
accrue on the principal amount of the Notes at a rate of 0.5% per annum for
the first 90 days commencing on (x) the 241st day after the Issue Date, in
the case of (A) above, or (y) the day such Shelf Registration Statement
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ceases to be effective in the case of (B) above, such Liquidated Damages
rate by increasing by an additional 0.5% per annum at the beginning of each
subsequent 90-day period;
provided, however, that the Liquidated Damages rate on the
Notes may not exceed in the aggregate 2.0% per annum; provided, further,
however, that (1) upon the filing of the Exchange Registration Statement or
a Shelf Registration Statement (in the case of Section 2(c)(i)), (2) upon
the effectiveness of the Exchange Registration Statement or Shelf
Registration Statement (in the case of Section 2(c)(iv)), or (3) upon the
exchange of Exchange Notes for all Notes tendered (in the case of Section
2(c)(iii)), or upon the effectiveness of the Shelf Registration Statement
which had ceased to remain effective (in the case of Section 3(b)),
Liquidated Damages on the Notes as a result of such Section, as the case may
be, shall cease to accrue.
(b) The Company shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash semiannually on each August 15 and February 15 (to the holders
of record on August 1 and February 1), commencing with the first such date
occurring after any such Additional Interest commences to accrue. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Registrable Notes, multiplied by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company shall effect such
registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof,
and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder, the Company shall:
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(a) Prepare and file with the SEC on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections
2 or 3 hereof, and use its best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that, if (1) such filing is pursuant to Section 3 hereof
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least five business days prior to such filing). The Company shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement, or
any such Participating Broker-Dealer, as the case may be, or their counsel,
or the managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) promulgated under the Securities Act;
and comply in all material respects with the provisions of the Securities
Act and the Exchange Act applicable to it with respect to the disposition of
all securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented and with respect to the subsequent resale
of any securities being sold by a Participating Broker-Dealer covered by any
such Prospectus; the Company shall be deemed not to have used its best
efforts to keep
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a Registration Statement effective during the Applicable Period if the
Company voluntarily takes any action that would result in selling Holders of
the Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable Notes
or such Exchange Notes during that period, unless such action is required by
applicable law or unless the Company complies in all material respects with
this Agreement, including without limitation, the provisions of paragraph
5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filedpursuant to Section 3 hereof
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, notify the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, promptly (but in
any event within two business days) and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment
has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy of
such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) if at any time
when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes
by Participating Broker-Dealers the representations and warranties of the
Company contained in any agreement (including any underwriting agreement),
contemplated by Section 5(n) hereof cease to be true and correct, (iv) of
the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange Notes
to be sold by any Participating Bro-
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ker-Dealer for offer or sale in any jurisdiction, or the initiation or
written threat of any proceeding for such purpose, (v) of the happening of
any event, the existence of any condition or any information becoming known
that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein
by reference untrue in any material respect or that requires the making of
any material changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (vi) of the Company's determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Notes or the Exchange Notes for sale in any jurisdiction and, if any such
order is issued, to use its best efforts to obtain the withdrawal of any
such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter or underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters, if any, such
Holders or counsel for any of them determine is reasonably necessary to be
included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment and
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(iii) supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes and to each such Participating Broker-Dealer who
so requests and to their respective counsel and each managing underwriter,
if any, at the sole expense of the Company, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules and, if
requested, all documents incorporated or deemed to be incorporated therein
by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, deliver to each selling Holder of
Registrable Notes, or each such Participating Broker-Dealer, as the case may
be, their respective counsel and the underwriters, if any, at the sole
expense of the Company, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by reference therein as
such Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may
be, and the underwriters or agents, if any, and dealers, if any, in
connection with the offering and sale of the Registrable Notes covered by,
or the sale by Participating Broker-Dealers of the Exchange Notes pursuant
to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public
offering of Registrable Notes or Exchange Notes or any delivery of a
Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange
-16-
Notes during the Applicable Period, use its best efforts to register or
qualify and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, Participating Broker-Dealer or the
managing underwriter or underwriters reasonably request in writing;
provided, however, that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Company agrees to cause its counsel to perform
Blue Sky investigations and file registrations and qualifications required
to be filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that the Company shall
not be required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would subject it
to general service of process in any such jurisdiction where it is not then
so subject or (C) subject itself to taxation in any such jurisdiction where
it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to
be sold, which certificates shall not bear any restrictive legends and shall
be in a form eligible for deposit with The Depository Trust Company; and
enable such Registrable Notes to be in such denominations and registered in
such names as the managing underwriter or underwriters, if any, or Holders
may reasonably request.
(j) Use its best efforts to cause the Registrable Notes covered by the
Registration Statement to be registered with or approved by such other
governmental agencies
-17-
or authorities as may be necessary to enable the Holders thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes, except as may be required solely as a consequence of the
nature of such selling Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi), hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the Company's sole expense, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Use its reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the case
may be, to be rated with the appropriate rating agencies, if so requested by
the Holders of a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement or the Exchange Notes, as the case
may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates
for the Registrable Notes or Exchange Notes, as the case may be, in a form
eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Notes or Exchange Notes, as the case may
be.
-18-
(n) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the Notes
and take all such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Notes, and confirm the same in
writing if and when requested; (ii) obtain the written opinion of counsel to
the Company and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions requested in underwritten offerings of debt similar to the Notes
and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) obtain "cold comfort" letters and updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Notes and such
other matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 7 hereof (or such other provisions
and procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and the
managing underwriter or underwriters or agents) with respect to all parties
to be indemnified pur-
-19-
suant to said Section. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, make available for inspection by any
selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all relevant financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence responsibilities,
and cause the respective officers, directors and employees of the Company
and its subsidiaries to supply all information reasonably requested by any
such Inspector in connection with such Registration Statement. Any such
access granted to the Inspectors under this Section 5(o) shall be subject to
the prior receipt by the Company of undertakings to preserve the
confidentiality of any information deemed to the Company to be confidential
in form and substance reasonably satisfactory to the Company. Records that
the Company determines, in good faith, to be confidential and any Records
that it notifies the Inspectors are confidential shall not be disclosed
by the Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration Statement,
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or proceeding, directly
or indirectly, involving or potentially involving such Inspector and arising
out of, based upon, relating to or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the
information in such Records has been made generally available to the
-20-
public. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such information is generally
available to the public. Each selling Holder of such Registrable Notes and
each such Participating Broker-Dealer will be required to further agree that
it will, upon learning that disclosure of such Records is sought in a court
of competent jurisdiction, give notice to the Company and allow the Company
to undertake appropriate action to prevent disclosure of the Records deemed
confidential at the Company's sole expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange
Offer or the first Registration Statement relating to the Registrable Notes;
and in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such changes
to such indenture as may be required for such indenture to be so qualified
in accordance with the terms of the TIA; and execute, and use its reasonable
best efforts to cause such trustee to execute, all documents as may be
required to effect such changes and all other forms and documents required
to be filed with the SEC to enable such indenture to be so qualified in a
timely manner.
(q) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its securityholders
earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any fiscal
quarter (or 90 days after the end of any fiscal year) (i) commencing at the
end of any fiscal quarter in which Registrable Notes are sold to
underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company after the effective
date of a Registration Statement, which
statements shall cover said fiscal periods.
-21-
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company, who may, at the
Company's election, be internal counsel to the Company, in a form customary
for underwritten transactions, addressed to the Trustee for the benefit of
all Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, and the related indenture constitute
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its respective terms, subject to customary
exceptions and qualifications.
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company) in exchange for
the Exchange Notes or the Private Exchange Notes, as the case may be, the
Company shall xxxx, or cause to be marked, on such Registrable Notes that
such Registrable Notes are being cancelled in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be; in no event shall
such Registrable Notes be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(u) Use its best efforts to take all other steps necessary or advisable
to effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Registrable Notes as the
Company may, from time to time, reasonably request. The Company may exclude from
such registration the Registrable Notes of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request
and in such event shall have no further obligation under this Agreement
(including,
-22-
without limitation, obligations under Section 4 hereof) with respect to
such seller or any subsequent holder of such Registrable Notes. Each
seller as to which any Shelf Registration is being effected agrees to
furnish promptly to the Company all information required to be disclosed
in order to make the information previously furnished to the Company by
such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as the
case may be, that, upon actual receipt of any notice from the Company of
the happening of any event of the kind described in Sections 5(c)(ii),
5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event
that the Company shall give any such notice, each of the Effectiveness
Period and the Applicable Period shall be extended by the number of days
during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the
Company whether or not the Exchange Offer or a Shelf Registration is
filed or becomes effective, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance
with state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of counsel in connection with Blue Sky
qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of
-23-
the Registrable Notes or Exchange Notes for investment under the laws of
such jurisdictions (x) where the holders of Registrable Notes are
located, in the case of the Exchange Notes, or (y) as provided in
Section 5(h) hereof, in the case of Registrable Notes or Exchange Notes
to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Notes or Exchange
Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any, by the
Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or sold by any
Participating Broker-Dealer, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel
for the Company and fees and disbursements of special counsel for the
sellers of Registrable Notes (subject to the provisions of Section 6(b)
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees,
if any, and any fees associated with making the Registrable Notes or
Exchange Notes eligible for trading through the Depository Trust
Company, (vii) Securities Act liability insurance, if the Company
desires such insurance, (viii) fees and expenses of all other Persons
retained by the Company, (ix) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers
and employees of the Company performing legal or accounting duties), (x)
the expense of any annual audit, (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on any
securities exchange, if applicable, and (xii) the expenses relating to
printing, word processing and distributing of all Registration
Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary to comply with this
Agreement.
(b) The Company shall (i) reimburse the Holders of the
Registrable Notes being registered in a Shelf Registration for the
reasonable fees and disbursements of not more than one counsel chosen by
the Holders of a majority in aggregate principal amount of the
Registrable Notes to be included in such Registration Statement. All
other out-of-pocket costs incurred by such Holders shall be the
responsibility of such Holders.
-24-
7. Indemnification
(a) The Company agrees to indemnify and hold harmless each
Holder of Registrable Notes offered pursuant to a Shelf Registration
Statement and each Participating Broker-Dealer selling Exchange Notes
during the Applicable Period, the officers and directors of each such
Person or its affiliates, and each other Person, if any, who controls
any such Person or its affiliates within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees
and other expenses actually incurred in connection with any suit, action
or proceeding or any claim asserted) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which the offering
of such Registrable Notes or Exchange Notes, as the case may be, is
registered (or any amendment thereto) or related Prospectus (or any
amendments or supplements thereto) or any related preliminary
prospectus, or caused by, arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company will not be required to indemnify a
Participant if (i) such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Company in writing by or on
behalf of such Participant expressly for use therein or (ii) if such
Participant sold to the person asserting the claim the Registrable Notes
or Exchange Notes that are the subject of such claim and such untrue
statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the
Prospectus or any amendment or supplement thereto and the Prospectus
does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject
matter of the related proceeding and it is established by the Company in
the related proceeding that such Participant failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to such
Person with or prior to the confirmation of the sale of such Registrable
Notes or Exchange Notes sold to such Person if required by applicable
law, unless such failure to deliver or provide a copy of the Prospectus
(as amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
-25-
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Company's directors and
officers and each Person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each
Participant, but only (i) with reference to information relating to such
Participant furnished to the Company in writing by or on behalf of such
Participant expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto or any preliminary
prospectus or (ii) with respect to any untrue statement or
representation made by such Participant in writing to the Company. The
liability of any Participant under this paragraph shall in no event
exceed the proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes giving rise to such obligations.
(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 indemnity may be sought
pursuant to either of the two preceding paragraphs, such Person (the
"Indemnified Person") shall promptly notify the Person against whom such
indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person
may reasonably designate in such proceeding and shall pay the reasonable
fees and expenses actually incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability
that it may have hereunder or otherwise (unless and only to the extent
that such failure directly results in material prejudice to the
Indemnifying Person and the Indemnifying Person was not otherwise aware
of such action or claim). 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 in writing to the contrary, (ii) the
Indemnifying Person shall have failed within a reasonable period of time
to retain counsel reasonably satisfactory to the Indemnified Person or
(iii) 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 that, un-
-26-
less there exists a conflict among Indemnified Persons, the Indemnifying
Person shall not, in connection with any one such proceeding or separate
but substantially similar related proceedings in the same jurisdiction
arising out of the same general allegations, be liable for the 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 promptly as they are incurred. Any such
separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a
majority in interest of Registrable Notes and Exchange Notes sold by all
such Participants and any such separate firm for the Company, its
directors, its officers and such control Persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its
prior written consent, but if settled with such consent or if there be a
final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this
Agreement, the Indemnifying Person agrees to indemnify and hold harmless
each Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any
settlement or compromise of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party,
and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional written
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 an admission of fault, culpability or failure to act
by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraphs, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for just and
equitable contribution, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Person or Persons on the one hand and
the Indemnified Person or Persons on the other in connection with the
statements or omissions or al-
-27-
leged statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof). 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
Participant or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and
any other equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants 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 the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses
actually incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall a Participant be
required to contribute any amount in excess of the amount by which
proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay or has paid 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 indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability that the
Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.
8. Rule 144 and 144A
The Company covenants that it will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC
-28-
thereunder in a timely manner in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time the Company is
not required to file such reports, it will, upon the request of any
Holder of Registrable Notes, make publicly available annual reports and
such information, documents and other reports of the type specified in
Sections 13 and 15(d) of the Exchange Act. The Company further covenants
for so long as any Registrable Notes remain outstanding, to make
available to any Holder or beneficial owner of Registrable Notes in
connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner the information
required by Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Registrable Notes pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment
banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Notes included in such offering and
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable Notes on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, and shall not, after the date of this Agreement, enter into
any agreement with respect to any of the Company's securities that is
inconsistent with the rights granted to the Holders of Registrable Notes
in this Agreement or otherwise conflicts with the provisions hereof. The
Company has not entered and will not enter into any agreement with
respect to any of its securities that will grant to any Person
piggy-back registration rights with respect to a Registration Statement.
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(b) Adjustments Affecting Registrable Notes. The Company shall
not, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of
the Holders of Registrable Notes to include such Registrable Notes in a
registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than
with the prior written consent of the Holders of not less than a
majority in aggregate principal amount of the then outstanding
Registrable Notes. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of
at least a majority in aggregate principal amount of the Registrable
Notes being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this sentence may
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or
facsimile:
1. if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchaser as follows:
BT ALEX. XXXXX INCORPORATED
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Finance Department
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
2. if to the Initial Purchaser, at the addresses specified in
Section 10(d)(1);
3. if to the Company, at the address as follows:
UNIVERSAL COMPRESSION HOLDINGS, INC.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; one business day after being timely delivered to a next-day air
courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
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 and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties hereto; provided, however, that this Agreement shall not inure
to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign holds Registrable
Notes.
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(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 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, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third party beneficiaries of
this Agreement and this Agreement may be enforced by such Persons.
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(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a
final and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and
therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial
Purchaser on the one hand and the Company on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect to the
subject matter hereof and thereof are merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
TW ACQUISITION CORPORATION
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
BT ALEX. XXXXX INCORPORATED
By: /s/ XXXXX XXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
