Exhibit (a)(9)
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 25, 1998
Between
UNIVERSAL HOSPITAL SERVICES, INC
and
BT ALEX. XXXXX INCORPORATED
as Initial Purchaser
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$100,000,000
10 1/4% SENIOR NOTES DUE 2008
TABLE OF CONTENTS
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Page
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1. Definitions . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer . . . . . . . . . . . . . . . . . . 5
3. Shelf Registration . . . . . . . . . . . . . . . . 9
Shelf Registration . . . . . . . . . . . . . 9
Subsequent Shelf Registrations . . . . . . . 10
Supplements and Amendments . . . . . . . . . 10
4. Additional Interest . . . . . . . . . . . . . . . 10
5. Registration Procedures . . . . . . . . . . . . . 13
6. Registration Expenses . . . . . . . . . . . . . . 24
7. Indemnification . . . . . . . . . . . . . . . . . 25
8. Rule 144 and 144A . . . . . . . . . . . . . . . . 29
9. Underwritten Registrations . . . . . . . . . . . . 29
10. Miscellaneous . . . . . . . . . . . . . . . . . . 29
No Inconsistent Agreements . . . . . . . . . 29
Adjustments Affecting Registrable Notes . . . 30
Amendments and Waivers . . . . . . . . . . . 30
Notices . . . . . . . . . . . . . . . . . . . 30
Successors and Assigns . . . . . . . . . . . 32
Counterparts . . . . . . . . . . . . . . . . 32
Headings . . . . . . . . . . . . . . . . . . 32
Governing Law . . . . . . . . . . . . . . . . 32
Severability . . . . . . . . . . . . . . . . 32
Securities Held by the Company or Its
Affiliates . . . . . . . . . . . . . . . . 32
Third Party Beneficiaries . . . . . . . . . . 33
Entire Agreement . . . . . . . . . . . . . . 33
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement")
is dated as of February 25, 1998 between Universal Hospital
Services, Inc., a Minnesota corporation (the "Company"), and BT
Alex. Xxxxx Incorporated, as initial purchaser (the "Initial
Purchaser").
This Agreement is entered into in connection with the
Purchase Agreement, dated as of February 23, 1998, between the
Company and the Initial Purchaser (the "Purchase Agreement"),
which provides for the sale by the Company to the Initial
Purchaser of $100,000,000 aggregate principal amount of the
Company's 10 1/4% Senior Notes due 2008 (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
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As used in this Agreement, the following terms shall
have the following meanings:
Additional Interest: See Section 4(a) hereof.
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 180 days after
the Issue Date; provided, however, that with respect to any
Shelf Registration, the Effectiveness Date shall be the Shelf
Effectiveness Date.
Effectiveness Period: See Section 3(a) hereof.
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: If no Exchange Registration Statement
has been filed by the Company pursuant to this Agreement, the
45th day 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 25,
1998 by and between the Company and First Trust National
Association, 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.
Initial Shelf Registration: See Section 3(a) hereof.
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, 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.
Registration Statement: Any registration statement
of the Company, 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 Effectiveness Date: With respect to any Shelf
Registration, the 150th day after the Shelf Filing Date.
Shelf Filing Date: The later of (i) the Filing Date
or (ii) the 30th day after the delivery of a Shelf Notice.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b)
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 one or more of the
Issuers are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
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(a) The Company shall file with 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 210th 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 been effective for
purposes of this Agreement during the period of such
interference, until the Exchange Offer or issuance of Exchange
Notes, as the case may be, may legally resume. Each Holder who
participates in the Exchange Offer will be required, as a
condition to its participation in the Exchange Offer, to
represent in writing (which may be contained in the applicable
letter of transmittal) 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 (within the meaning
of the Securities Act) 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
accordance 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"), which have been publicly disseminated by the
Staff of the SEC. Such "Plan of Distribution" section shall
also expressly permit, to the extent permitted by applicable
policies and regulations of the SEC, 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 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").
Subject to applicable SEC policies and regulations,
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 request of the Initial Purchaser simultaneously 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 (A) from the later of (i) the last
interest payment date on which interest was paid on the Notes
surrendered in exchange therefor, or (ii) if the Note is
surrendered for exchange on a date in a period which includes
the record date for an interest payment date to occur on or
after the date of such exchange and as to which interest will
be paid, the date of such interest payment date or (B) if no
interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Company
shall:
(1) mail, or cause to be mailed, to each Holder
entitled to participate in the Exchange Offer 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
principal 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 shall vote and
consent together on all matters as one class and that neither
the Exchange Notes, the Private Exchange Notes or the Notes
will have the right to vote or consent as a separate class on
any matter.
(c) If, (i) because of any change in law or in
currently prevailing interpretations of the Staff of the SEC,
the Company is not permitted to effect an Exchange Offer,
(ii) the Exchange Offer is not consummated within 210 days of
the Issue Date, (iii) the holder of Private Exchange Notes so
requests at any time after the consummation of the Private
Exchange, (iv) the Holders of not less than a majority in
aggregate principal amount of the Registrable Notes reasonably
determine that the interests of the Holders would be materially
adversely affected by consummation of the Exchange Offer or
(v) in the case of any Holder that participates in the Exchange
Offer, such Holder does not receive Exchange Notes on the date
of the exchange that may be sold without restriction under
state and federal securities laws (other than due solely to the
status of such Holder as an affiliate of the Company within the
meaning of the Securities Act), then the Company shall promptly
deliver written notice thereof (the "Shelf Notice") to the
Trustee and in the case of clauses (i), (ii) and (iv), all
Holders, in the case of clause (iii), the Holders of the
Private Exchange Notes and in the case of clause (v), the
affected Holder, and shall file a Shelf Registration pursuant
to Section 3 hereof.
3. Shelf Registration
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If a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. No later than the Shelf
Filing Date, the Company shall file with the SEC a Registration
Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes not
exchanged in the Exchange Offer and Exchange Notes as to which
Section 2(c)(v) is applicable (the "Initial Shelf
Registration"). The Initial 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 Initial Shelf Registration.
The Company shall use its best efforts to cause the
Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date and to
keep the Initial Shelf Registration continuously effective
under the Securities Act until the date which is two years from
the Issue Date (the "Effectiveness Period"), or such shorter
period ending when (i) all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set
forth and as contemplated in such Initial Shelf Registration
or (ii) a Subsequent Shelf Registration covering all of the
Registrable Notes covered by and not sold under the Initial
Shelf Registration or an earlier Subsequent Shelf Registration
has been declared effective under the Securities Act; provided,
however, that the Effectiveness Period in respect of the
Initial Shelf Registration shall be extended to the extent
required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 and as otherwise
provided herein.
(b) Subsequent Shelf Registrations. If the Initial
Shelf Registration or any Subsequent 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, and in any event shall
within 30 days of such cessation of effectiveness amend the
Initial Shelf Registration in a manner to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415
covering all of the Registrable Notes covered by and not sold
under the Initial Shelf Registration or an earlier Subsequent
Shelf Registration (each, a "Subsequent Shelf Registration").
If a Subsequent Shelf Registration is filed, the Company shall
use its best efforts to cause the Subsequent Shelf Registration
to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such Subsequent Shelf
Registrations continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate
number of days during which the Initial Shelf Registration was
previously continuously effective. As used herein the term
"Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration.
(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. Additional Interest
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(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
interest on the Notes ("Additional Interest") under the
circumstances and to the extent set forth below (without
duplication):
(i) if (A) neither the Exchange Registration
Statement nor the Shelf Registration Statement is 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 and such Shelf Registration is
not filed on or prior to the Shelf Filing Date, then
commencing on the day after (x) the Filing Date, in the
case of clause (A) above, or (y) the Shelf Filing Date, in
the case of clause (B) above, Additional Interest shall
accrue on the principal amount of the Notes so affected at
a rate of 0.50% per annum for the first 90 days
immediately following,(x) the Filing Date, in the case of
clause (A) above, or (y) the Shelf Filing Date, in the
case of clause (B) above, and such Additional Interest
rate shall increase by an additional 0.50% per annum at
the beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Registration
Statement nor a Shelf Registration Statement is declared
effective by the SEC or (B) notwithstanding that the
Company has consummated or will consummate the Exchange
Offer, the Company is required to file a Shelf
Registration and such Shelf Registration is not declared
effective by the SEC on or prior to the Shelf
Effectiveness Date, then, commencing on the day after (x)
the Effectiveness Date, in the case of clause (A) above,
or (y) the Shelf Effectiveness Date, in the case of clause
(B) above, Additional Interest shall accrue on the
principal amount of the Notes so affected at a rate of
0.50% per annum for the first 90 days immediately
following (x) the Effectiveness Date, in the case of
clause (A) above, or (y) the Shelf Effectiveness Date, in
the case of clause (B) above, with such Additional
Interest rate increasing by an additional 0.50% per annum
at the beginning of each subsequent 90-day period; or
(iii) if (A) the Company has not exchanged Exchange
Notes for all Notes validly tendered in accordance with
the terms of the Exchange Offer on or prior to the 45th
day after the date on which the Exchange Registration
Statement was declared effective or (B) if applicable, a
Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time
prior to the second anniversary of the Issue Date (other
than after such time as all Notes have been disposed of
thereunder), then Additional Interest shall accrue on the
principal amount of the Notes so affected at a rate of
0.50% per annum for the first 90 days commencing on (x)
the 46th day after such effective date, in the case of (A)
above, or (y) the day such Shelf Registration ceases to be
effective in the case of (B) above, such Additional
Interest rate increasing by an additional 0.50% per annum
at the beginning of each subsequent 90-day period;
provided, however, that the Additional Interest rate on any
affected Note may not exceed at any one time in the aggregate
1.0% per annum; provided, further, however, that (1) upon the
filing of the Exchange Registration Statement or a Shelf
Registration (in the case of clause (i) of this Section 4(a)),
(2) upon the effectiveness of the Exchange Registration
Statement or a Shelf Registration (in the case of clause (ii)
of this Section 4(a)), or (3) upon the exchange of Exchange
Notes for all Notes tendered (in the case of clause (iii)(A) of
this Section 4(a)), or upon the effectiveness of the Shelf
Registration that had ceased to remain effective (in the case
of (iii)(B) of this Section 4(a)), Additional Interest on the
Notes as a result of such clause (or the relevant subclause
thereof), 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 semi-annually on each March 1 and September
1 (to the holders of record on the February 15 and August 15
immediately preceding such dates), 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
consisting of twelve 30-day months) and the denominator of
which is 360.
5. Registration Procedures
-----------------------
In connection with the filing of any Registration
Statement pursuant to Section 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:
(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, 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, or such later date as is reasonable under the
circumstances). 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, 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
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 a Registration Statement
effective during the Applicable Period if it 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 permitted by this Agreement.
(c) 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 from whom the
Company has received written notice that it will be a
Participating Broker-Dealer in the Exchange Offer, notify
the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, 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, and, if
specifically requested, 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
Broker-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 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) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer 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,
use its 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 and (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.
(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, 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, 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, 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
Notes during the Applicable Period, to 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, 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 or Participating Broker-Dealer 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 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 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 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. Notwithstanding the foregoing, the Company
shall not be required to amend or supplement a
Registration Statement, any related Prospectus or any
document incorporated therein by reference, in the event
that, and for a period not to exceed an aggregate of 60
days in any calendar year if, (i) an event occurs and is
continuing as a result of which the Shelf Registration
would, in the Company's good faith judgment, contain an
untrue statement of a material fact or omit 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; and (ii) (a) the Company
determines in its good faith judgment that the disclosure
of such event at such time would have a material adverse
effect on the business operations or prospects of the
Company or (b) the disclosure otherwise relates to a
pending material business transaction that has not yet
been publicly disclosed.
(l) Use its 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.
(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 in
accordance with Statement on Auditing Standards No. 72;
and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and
procedures no less favorable 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
pursuant 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 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 and/or Prospectus. If
the Company shall so require, each Inspector shall agree
in writing that it will keep the Records confidential and
that it will not disclose any of the records that the
Company determines, in good faith, to be confidential and
notifies the Inspectors are confidential unless (i) the
disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration
Statement and/or Prospectus, (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 reasonable 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 public. Each selling Holder of such
Registrable Notes 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. In addition, prior notice
shall be provided as soon as practicable to the Company of
the potential disclosure of any information by such
Inspector pursuant to clauses (i) or (ii) above to permit
the Company to obtain a protective order (or waive the
provisions of this paragraph (o)) and that such Inspector
shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of
the rights and interest of the Holder or any Inspector.
(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 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 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 12-month
periods.
(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
reasonably necessary 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, 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, 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
---------------------
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 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
by any Participating Broker-Dealer, as the case may be,
(iii) fees and disbursements of counsel for the Company and
reasonable fees and disbursements of one special counsel for
all of the sellers of Registrable Notes, (iv) 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),
(v) 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, (vi) fees and
expenses of all other Persons retained by the Company,
(vii) the expense of any annual audit, (viii) the fees and
expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, if
applicable, and (ix) 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.
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, directors, employees and agents of each
such Person or its affiliates, and each other Person, if any,
who controls any such Person 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 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(g) of this Agreement.
(b) Each Participant agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
officers, directors, employees and agents 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 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 the loss or compromise of any material
rights or defenses by 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 the
Indemnifying Person shall not, in connection with any one such
proceeding or separate but substantially similar related
proceeding 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 officers, directors,
employees and agents and such control Persons of the Company
shall be designated in writing by the Company and shall be
reasonably acceptable to the Participants.
The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its prior written
consent, which consent shall not be unreasonably withheld, 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 (which consent shall not be unreasonably
withheld), 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 alleged 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 legal or other expenses
actually incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. 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 and agrees 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 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,
the Company 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 and agrees 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
its 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 rights granted to
the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of any
of the Company's other issued and outstanding securities under
any such agreements. 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.
(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
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 address
specified in Section 10(d)(1);
3. if to the Company, at the address as follows:
UNIVERSAL HOSPITAL SERVICES, INC.
0000 Xxxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, 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.
(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.
(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.
UNIVERSAL HOSPITAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President and CEO
BT ALEX. XXXXX INCORPORATED
as Initial Purchaser
/s/ Xxxxxx Xxxxxx
-----------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
