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EXHIBIT 4.2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of August 7, 1997,
among Hollywood Theaters Inc., a Delaware corporation (the "Company"),
Hollywood Theater Holdings, Inc., a Delaware corporation and parent to the
Company ("Holdings"), Xxxxxxx, Xxxxx & Co., and BancAmerica Securities Inc., as
purchasers (collectively, the "Purchasers") of the 105/8% Senior Subordinated
Notes due August 1, 2007, of the Company, which are unconditionally guaranteed,
jointly and severally, by Holdings and the Company's subsidiary Crown Theatres
Corporation and will be guaranteed by any future Restricted Subsidiary of the
Company.
The Company proposes to issue and sell to the Purchasers (as defined
herein) upon the terms set forth in the Purchase Agreement (as defined herein)
the Notes (as defined herein). As an inducement to the Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of
the Purchasers thereunder, the Company agrees with the Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Notes (as defined herein) as follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Notes under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean August 7, 1997.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Date," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Offer Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Notes that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
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"Exchange Notes" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Guarantors" shall have the meaning assigned thereto in the Indenture.
The term "holder" shall mean each of the Purchasers and other persons
who acquire Registrable Notes from time to time (including any successors
or assigns), in each case for so long as such person owns any Registrable
Notes.
"Indenture" shall mean the Indenture, dated as of August 7, 1997,
between the Company and U.S. Trust Company of Texas, N.A., as Trustee, as
the same shall be amended from time to time.
"Notes" shall mean, collectively, the 105/8% Senior Subordinated Notes
due August 1, 2007 of the Company to be issued and sold to the Purchasers,
and securities issued in exchange therefor or in lieu thereof pursuant to
the Indenture. Each Note is entitled to the benefit of the guarantees
provided for in the Indenture (the "Guarantees") and, unless the context
otherwise requires, any reference herein to a "Note," an "Exchange Note"
or a "Registrable Note" shall include a reference to the related
Guarantees.
"Notice and Questionnaire" shall mean a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the
form of Exhibit A hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
July 31, 1997, between the Purchasers and the Company relating to the
Notes.
"Registrable Notes" shall mean the Notes; provided, however, that a
Note shall cease to be a Registrable Note when (i) in the circumstances
contemplated by Section 2(a) hereof, the Note has been exchanged for an
Exchange Note in an Exchange Offer as contemplated in Section 2(a)
(provided that any Exchange Note received by a broker-dealer in an
Exchange Offer in exchange for a Registrable Note that was not acquired by
the broker-dealer directly from the Company will also be a Registrable
Note through and including the earlier of the 90th day after the Exchange
Offer is completed or such time as such broker-dealer no longer owns such
Note); (ii) in the circumstances contemplated by Section 2(b) hereof, a
Shelf Registration Statement registering such Note under the Securities
Act has been declared or becomes effective and such Note has been sold or
otherwise transferred by the holder thereof pursuant to and in a manner
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contemplated by such effective Shelf Registration Statement; (iii) such
Note is sold pursuant to Rule 144 under circumstances in which any legend
borne by such Note relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed by the Company or
pursuant to the Indenture; (iv) such Note is eligible to be sold pursuant
to paragraph (k) of Rule 144; or (v) such Note shall cease to be
outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Notes outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Notes and (iv) a holder that is a broker-dealer, but only with respect to
Exchange Notes received by such broker-dealer pursuant to an Exchange
Offer in exchange for Registrable Notes acquired by the broker-dealer
directly from the Company.
"Restricted Subsidiary" shall have the meaning assigned thereto in the
Indenture.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
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2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to use
its reasonable best efforts to file with the Commission under the Securities
Act, within 60 days after the Closing Date, a registration statement relating
to an offer to exchange (such registration statement, the "Exchange Offer
Registration Statement", and such offer, the "Exchange Offer") any and all of
the Notes for a like aggregate principal amount of debt securities issued by
the Company and guaranteed by the Guarantors, which debt securities and
guarantees are substantially identical to the Notes and the related Guarantees,
respectively (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been registered
pursuant to an effective registration statement under the Securities Act and do
not contain provisions for the special interest payments contemplated in
Section 2(c) below (such new debt securities hereinafter called "Exchange
Notes"). The Company agrees to use its reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act as soon as practicable, but no later than 180 days after the Closing Date.
The Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company further agrees to use its
reasonable best efforts to commence and complete the Exchange Offer promptly
after such registration statement has become effective, hold the Exchange Offer
open for at least 30 days and issue Exchange Notes for all Registrable Notes
that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have
been "completed" only if the debt securities and related guarantees received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Notes are, upon receipt, transferable by each such holder without need for
further compliance with Section 5 of the Securities Act and the Exchange Act
(except for the requirement to deliver a prospectus included in the Exchange
Offer Registration Statement applicable to resales by broker-dealers of
Exchange Notes received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Notes other than those acquired by the broker-dealer
directly from the Company), and without material restrictions under the blue
sky or securities laws of a substantial majority of the States of the United
States of America. The Exchange Offer shall be deemed to have been completed
upon the earlier to occur of (i) the Company having exchanged the Exchange
Notes for all outstanding Registrable Notes pursuant to the Exchange Offer and
(ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange
Notes for all Registrable Notes that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a date
that is at least 30 days following the commencement of the Exchange Offer. The
Company agrees (x) to include in the Exchange Offer Registration Statement a
prospectus for use in connection with any resales of Exchange Notes by a
broker-dealer, other than resales of Exchange Notes received by a broker-dealer
pursuant to an Exchange Offer in exchange for Registrable Notes acquired by the
broker-dealer directly from the Company, and (y) to use its reasonable best
efforts to keep such Exchange Offer Registration Statement effective for a
period (the "Resale Period") beginning when Exchange Notes are first issued in
the Exchange Offer and ending upon the earlier of the expiration of the 180th
day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Notes. With respect to such
Exchange Offer Regis tration Statement, each broker-dealer that holds Exchange
Notes received in an Exchange Offer in exchange for Registrable Notes not
acquired by it directly from the Company shall have the benefit of the rights
of indemnification and contribution set forth in Sections 6(a), (c), (d) and
(e) hereof.
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(b) If (i) on or prior to the date of consummation of the Exchange Offer,
existing Commission interpretations are changed such that the debt securities
or any related guarantees received by holders other than Restricted Holders in
the Exchange Offer for Registrable Notes are not or would not be, upon receipt,
freely transferable by each such holder without need for further compliance
with Section 5 of the Securities Act (except for the requirement to deliver a
prospectus included in the Exchange Offer Registration Statement applicable to
resales by broker-dealers of Exchange Notes received by such broker-dealer
pursuant to an Exchange Offer in exchange for Registrable Notes other than
those acquired by the broker-dealer directly from the Company), (ii) the
Exchange Offer has not been consummated within 210 days following the Closing
Date or (iii) the Exchange Offer is not available to any holder of the Notes,
other than a Restricted Holder, in lieu of (or, in the case of clause (iii), in
addition to) conducting the Exchange Offer contemplated by Section 2(a) the
Company shall use its reasonable best efforts to file under the Securities Act
as soon as practicable, but no later than 60 days after the Closing Date, a
"shelf" registration statement providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Notes, or in the case of clause (iii), of Notes held by a holder of Notes for
resale by such holder, pursuant to Rule 415 or any similar rule that may be
adopted by the Commission (such filing, the "Shelf Registration" and such
registration statement, the "Shelf Registration Statement"). The Company agrees
(i) to use its reasonable best efforts to cause such Shelf Registration
Statement be declared effective within 180 days of the Closing Date and to
remain effective for two years following the effective date of the Shelf
Registration Statement or such shorter period that will terminate when all the
securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement, provided, however, that no holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the prospectus forming a part thereof for resales of
Registrable Notes unless such holder is an Electing Holder, and (ii) after the
Effective Date of the Shelf Registration Statement, promptly upon the request
of any holder of Registrable Notes that is not then an Electing Holder, to take
any action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Notes, including, without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement, provided, however, that
nothing in this clause (ii) shall relieve any such holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. Notwithstanding clause (i) of the
previous sentence, the Company shall not be obligated to keep the Shelf
Registration Statement effective if (A) the Company determines, in its
reasonable judgment, upon advice of counsel, that the continued effectiveness
and usability of the Shelf Registration Statement would (x) require the
disclosure of confidential information, which the Company has a bona fide
business reason for preserving as confidential, or (y) interfere with any
financing, acquisition, corporate reorganization or other material transaction
involving the Company or any affiliate, and provided further, that the failure
to keep the Shelf Registration Statement effective and usable for offers and
sales of Registrable Notes for such reasons shall last no longer than 45 days
in any 12-month period. Any such period during which the Company is excused
from keeping the Shelf Registration Statement effective and usable for offers
and sales of Registrable Notes is referred to herein as a "Suspension Period";
a Suspension Period shall commence and include the date that the Company gives
notice to the Electing Holders that the Shelf Registration Statement is no
longer effective or the prospectus included therein is no longer usable for
offers and sales of Registrable Notes as a result of the application of the
proviso of the foregoing sentence and shall end on the earlier to occur of (1)
the date on which each seller of Registrable Notes covered by the Shelf
Registration Statement
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either receives copies of the supplemented or amended prospectus or is advised
in writing by the Company that use of the prospectus may be resumed or (2) the
expiration of 45 days in any 12-month period during which one or more
Suspension Periods has been in effect.
(c) In the event that (i) the Company has not filed the Exchange Offer
Registration Statement (or, if applicable, the Shelf Registration Statement)
within 60 days following the Closing Date, or (ii) such Exchange Offer
Registration Statement or Shelf Registration Statement has not become effective
or been declared effective by the Commission within 180 days following the
Closing, or (iii) the Exchange Offer has not been consummated within 30
business days after the Effective Date or (iv) any Exchange Offer Registration
Statement or Shelf Registration Statement required by Section 2(a) or 2(b)
hereof is filed and declared effective but shall thereafter either be withdrawn
by the Company or shall become subject to an effective stop order issued
pursuant to Section 8(d) of the Securities Act suspending the effectiveness of
such registration statement (except as specifically permitted herein) without
being succeeded immediately by an additional registration statement filed and
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default" and each period during which a Registration Default has
occurred and is continuing, a "Registration Default Period"), then, the per
annum interest rate on the applicable Notes will increase, for the period from
the occurrence of the Registration Default until such time as no Registration
Default is in effect (at which time the interest rate will be reduced to its
initial rate) by 0.5% during the first 90-day period following the occurrence
of such Registration Default, and by an additional 0.5% thereafter (up to a
maximum of 1.0%).
(d) Each of Holdings and the Company shall take, and shall cause each
Guarantor to take, all action necessary or advisable to be taken by it to
ensure that the transactions contemplated herein are effected as so
contemplated, including all action necessary or desirable to register the
Guarantees under the registration statement contemplated in Section 2(a) or
2(b) hereof, as applicable.
(e) Any reference herein to a registration statement as of any time shall
be deemed to include any document incorporated therein by reference as of such
time and any reference herein to any post-effective amendment to a registration
statement as of any time shall be deemed to include any document incorporated
therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
(a) At or before the Effective Date of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment of
a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
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(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) to use its reasonable best efforts to prepare and file with the
Commission, as soon as practicable but no later than 60 days after the
Closing Date, an Exchange Offer Registration Statement on any form which
may be utilized by the Company and which shall permit the Exchange Offer
and resales of Exchange Notes by broker-dealers during the Resale Period
to be effected as contemplated by Section 2(a), and use its best efforts
to cause such Exchange Offer Registration Statement to become effective as
soon as practicable thereafter, but no later than 180 days after the
Closing Date;
(ii) as soon as practicable prepare and file with the Commission such
amendments and supplements to such Exchange Offer Registration Statement
and the prospectus included therein as may be necessary to use its
reasonable best efforts to effect and maintain the effectiveness of such
Exchange Offer Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Exchange Offer Registration Statement, and
promptly provide each broker-dealer holding Exchange Notes with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period, for
use in connection with resales of Exchange Notes;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration statement
for use in consummating resales during the Resale Period (and which has
provided in writing to the Company a telephone or facsimile number and
address for notices), and confirm such advice in writing, (A) when such
Exchange Offer Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Exchange Offer Registration
Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission or any request by the
Commission for amendments or supplements to such Exchange Offer
Registration Statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of such Exchange Offer Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Exchange Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (E)
at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Offer Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
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(iv) in the event that the Company would be required, pursuant to
Section 3(e)(iii)(F) above, to notify any broker-dealers holding Exchange
Notes, prepare and furnish as promptly as practicable to each such holder
a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange Notes during
the Resale Period, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and shall 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 not misleading in light of the circumstances then
existing;
(v) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effec tiveness of such Exchange Offer Registration
Statement or any post-effective amendment thereto as promptly as
practicable;
(vi) use its reasonable best efforts to (A) register or qualify the
Exchange Notes under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Notes to consummate the disposition thereof
in such jurisdictions; provided, however, that neither the Company nor any
Guarantor shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(c)(vi), (2)
consent to general service of process in any such jurisdiction or (3) make
any changes to its certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(vii) provide a CUSIP number for all Exchange Notes, not later than
the applicable Effective Date;
(viii) use its reasonable best efforts to comply with all applicable
rules and regulations of the Commission; and make generally available to
its securityholders as soon as practicable but no later than eighteen
months after the effective date of such Exchange Offer Registration
Statement, an earnings statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall, as soon as practicable (or as
otherwise specified):
(i) to use its reasonable best efforts to prepare and file with the
Commission, as soon as practicable but in any case within the time period
specified in Section 2(b), a Shelf Registration Statement on any form
which may be utilized by the Company and which shall register all of the
Registrable Notes for resale by the holders thereof in accordance with
such method or methods of disposition as may be specified by such of the
holders as, from time to time, may be Electing Holders and use its
reasonable best efforts to cause such Shelf Registration
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Statement to become effective as soon as practicable but in any case
within the time period specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective Date of the
Shelf Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Notes; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the
Effective Date, and no holder shall be entitled to use the prospectus
forming a part thereof for resales of Registrable Notes at any time,
unless such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; provided, however, holders of Registrable Notes shall have at
least 21 calendar days from the date on which the Notice and Questionnaire
is first mailed to such holders to return a completed and signed Notice
and Questionnaire to the Company;
(iii) after the Effective Date of the Shelf Registration Statement,
upon the request of any holder of Registrable Notes that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such holder;
provided that the Company shall not be required to take any action to name
such holder as a selling securityholder in the Shelf Registration
Statement or to enable such holder to use the prospectus forming a part
thereof for resales of Registrable Notes until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as reasonably practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf Registration Statement
for the period specified in Section 2(b) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such supplement or
amendment as promptly as practicable after filing with the Commission;
(v) comply with the provisions of the Securities Act with respect to
the disposition of all of the Registrable Notes covered by such Shelf
Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf
Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters (which
term, for purposes of this Exchange and Registration Rights Agreement,
shall include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) counsel for any such underwriter or agent
and (E) not more than one counsel for all the Electing Holders the
opportunity to review and comment on the Shelf Registration Statement,
each prospectus included therein or filed with the Commission and each
amendment or supplement thereto at least ten days prior to its filing;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(vi) who shall certify to the Company that they
have a current intention to sell the Registrable Notes pursuant to the
Shelf Registration such financial and other
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information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably necessary, in
the reasonable judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the
Company as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or order
of any court or other governmental agency or body having jurisdiction over
the matter (subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of such
requirement), or (C) subject to the provisions of Section 2(b) relating to
Suspension Periods, such information is required to be set forth in such
Shelf Registration Statement or the prospectus included therein or in an
amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be,
complies with applicable requirements of the federal securities laws and
the rules and regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof (which notification
may be made through any managing underwriter that is a representative of
such underwriter for such purpose) and confirm such advice in writing, (A)
when such Shelf Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission with respect thereto or any request by the
Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (E) if at any time when
a prospectus is required to be delivered under the Securities Act, such
Shelf Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(ix) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto as promptly as practicable;
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(x) if requested by any managing underwriter or underwriters, any
placement or sales agent or Electing Holder, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such Electing
Holder specifies should be included therein relating to the terms of the
sale of such Registrable Notes, including information with respect to the
principal amount of Registrable Notes being sold by such Electing Holder
or agent or to any underwriters, the name and description of such Electing
Holder, agent or underwriter, the offering price of such Registrable Notes
and any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the offering of the Registrable Notes
to be sold by such Electing Holder or agent or to such underwriters; and
make all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales agent,
if any, therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(d)(vi) an executed copy (or, in the case
of an Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of an Electing Holder, upon
request) and documents incorporated by reference therein) and such number
of copies of such Shelf Registration Statement (excluding exhibits thereto
and documents incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the case may
be) and of the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary prospectus), and
such other documents, as such Electing Holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Notes owned by such Electing
Holder, offered or sold by such agent or underwritten by such underwriter
and to permit such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the Company
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in each case
in the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Notes covered by
the prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(xii) use its reasonable best efforts to (A) register or qualify the
Registrable Notes to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions as any
Electing Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to
remain effective under Section 2(b) above and for so long as may be
necessary to enable any Electing Holder, agent or underwriter to complete
its distribution of Notes pursuant to such Shelf Registration Statement
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any, and
underwriter, if any, to consummate the disposition in such jurisdictions
of such Registrable Notes; provided, however,
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that neither the Company nor any Guarantor shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it and
its stockholders;
(xiii) cooperate with the Electing Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold, which certificates
shall be printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive legends; and, in
the case of an underwritten offering, enable such Registrable Notes to be
in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
the Registrable Notes;
(xiv) provide a CUSIP number for all Registrable Notes, not later than
the applicable Effective Date;
(xv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions
relating to indemnification and contribution, and take such other actions
in connection therewith, as any Electing Holders aggregating at least 30%
in aggregate principal amount of the Registrable Notes at the time
outstanding shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Notes;
(xvi) whether or not an agreement of the type referred to in Section
3(d)(xvi) hereof is entered into and whether or not any portion of the
offering contemplated by the Shelf Registration is an underwritten
offering or is made through a placement or sales agent or any other
entity, (A) make such representations and warranties to the Electing
Holders covered by such Shelf Registration and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made in connection with an offering
of debt securities pursuant to an appropriate agreement; (B) obtain an
opinion of counsel to the Company in customary form and covering such
matters, of the type customarily covered by such an opinion, as the
managing underwriters, if any, or as any Electing Holders of at least 30%
in aggregate principal amount of the Registrable Notes at the time
outstanding may reasonably request, addressed to such Electing Holder or
Electing Holders and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof and dated the effective date of such
Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the Regis trable
Notes, dated the date of the closing under the underwriting agreement
relating thereto); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants of the Company addressed to the
Electing Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such Shelf
Registration Statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such Shelf Registration Statement
or post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included
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in such prospectus (and, if such Shelf Registration Statement contemplates
an underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement which includes unaudited or
audited financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus, dated the
date of the closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering such matters
of the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may be
reasonably requested by any Electing Holders of at least 30% in aggregate
principal amount of the Registrable Notes at the time outstanding or the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above and the compliance with or
satisfaction of any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company or any Guarantor;
and (E) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are no less favorable than those
provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable Notes of any
proposal by the Company to amend or waive any provision of this Exchange
and Registration Rights Agreement pursuant to Section 9(h) hereof and of
any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as
the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Notes or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers, Inc. ("NASD")
or any successor thereto, as amended from time to time) thereof, whether
as an Electing Holder or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and
By-Laws, including by providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the
requirements of the Rules of Fair Practice of the NASD; and
(xx) use its reasonable best efforts to comply with all applicable
rules and regulations of the Commission; and make generally available to
its securityholders as soon as practicable but in any event not later than
eighteen months after the effective date of such Shelf Registration
Statement, an earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the selling Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters, if any, thereof,
the Company shall prepare and furnish as promptly as practicable to each of the
Electing Holders, to each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of Registrable Notes,
such prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder and shall not contain an untrue
statement of a material
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fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder and agent therefor or
underwriter thereof agrees that upon receipt of any notice from the Company
pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder, agent or
underwriter shall forthwith discontinue the disposition of Registrable Notes
pursuant to the Shelf Registration Statement applicable to such Registrable
Notes until such Electing Holder, agent or underwriter shall have received
copies of such amended or supplemented prospectus, and if so directed by the
Company, such Electing Holder, agent or underwriter shall deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies, then in their possession of the prospectus covering such Registrable
Notes at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice Questionnaire,
the Company may require each Electing Holder as to which any Shelf Registration
pursuant to Section 2(b) is being effected to furnish to the Company such
additional information regarding such Electing Holder and such Electing
Holder's intended method of distribution of such Registrable Notes as may be
required in order to comply with the Securities Act. Each such Electing Holder
agrees to notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Electing Holder to the
Company or of the occurrence of any event in either case as a result of which
any prospectus relating to such Shelf Registration contains or would contain an
untrue statement of a material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Notes or
omits to state any material fact regarding such Electing Holder or such
Electing Holder's intended method of disposition of such Registrable Notes
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such Electing Holder or the disposition of such
Registrable Notes, 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 not misleading in light of the circumstances then existing.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and
any NASD registration, filing and review fees and expenses including reasonable
fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Notes for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof, including reasonable fees and disbursements of
counsel for the Electing Holders (subject to the limitation of clause (i)
below) or underwriters in connection with such qualification and determination,
(c) all expenses relating to the preparation, printing, production,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, the expenses of
preparing the Notes for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in
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connection with the offering, sale or delivery of Notes to be disposed of
(including certificates representing the Notes), (d) fees and expenses of the
Trustee under the Indenture, any agent of the Trustee and any counsel for the
Trustee and of any collateral agent or custodian, (e) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or "cold comfort" letters required by
or incident to such performance and compliance), (f) reasonable fees,
disbursements and expenses of one counsel for the Electing Holders retained in
connection with a Shelf Registration, as selected by the Electing Holders of at
least a majority in aggregate principal amount of the Registrable Notes held by
Electing Holders (which counsel shall be reasonably satisfactory to the
Company) and (g) any fees charged by securities rating services for rating the
Notes (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of
Registrable Notes or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Notes being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Notes and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above, and shall bear all
out-of-pocket expenses of such holders incurred in connection with the
registration of the Registrable Notes.
5. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify and hold
harmless each of the holders of Registrable Notes included in an Exchange Offer
Registration Statement, each of the Electing Holders of Registrable Notes
included in a Shelf Registration Statement, and each person who participates as
a placement or sales agent or as an underwriter in any offering or sale of such
Registrable Notes against any losses, claims, damages or liabilities, joint or
several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Exchange Offer Registration Statement or Shelf Registration Statement, as
the case may be, under which such Registrable Notes were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company shall, and it hereby agrees to, reimburse such
holder, such Electing Holder, such agent and such underwriter for any legal or
other expenses reason ably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein;
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(b) Indemnification by the Electing Holders and any Agents and
Underwriters. The Company may require, as a condition to including any
Registrable Notes in any registration statement filed pursuant to Section 2(b)
hereof and to entering into any underwriting agreement with respect thereto,
that the Company shall have received an undertaking reasonably satisfactory to
it from the Electing Holder of such Registrable Notes and from each underwriter
named in any such underwriting agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, and all other holders of Registrable
Notes, against any losses, claims, damages or liabilities to which the Company
or such other holders of Registrable Notes may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by such Electing Holder or underwriter expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to undertake liability
to any person under this Section 6(b) for any amounts in excess of the dollar
amount of the proceeds to be received by such Electing Holder from the sale of
such Electing Holder's Registrable Notes pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions
of or contemplated by this Section 6, notify such indemnifying party in writing
of the commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
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party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 6(d) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 6(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 6(d), no holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the proceeds received by such holder
from the sale of any Registrable Notes (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, and no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Notes underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in proportion
to the principal amount of Registrable Notes registered or underwritten, as the
case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the Securities
Act; and the obliga tions of the holders and any agents or underwriters
contemplated by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a
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director of the Company) and to each person, if any, who controls the Company
within the meaning of the Securities Act.
6. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Notes covered by
the Shelf Registration are to be sold pursuant to an underwritten offering, the
managing underwriter or underwriters thereof shall be designated by Electing
Holder's holding at least a majority in aggregate principal amount of the
Registrable Notes to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(b) Participation by Holders. Each holder of Registrable Notes hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) 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 (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7. Rule 144.
The Company covenants to the holders of Registrable Notes that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or
the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitations of the exemption provided by
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Notes in connection
with that holder's sale pursuant to Rule 144, the Company shall deliver to such
holder a written statement as to whether it has complied with such
requirements.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Notes or any other securities which would be
inconsistent with the terms contained in this Exchange and Registration Rights
Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of their
respective obligations hereunder and that the Purchasers and the holders from
time to time of the Registrable Notes may be irreparably harmed by any such
failure, and accordingly agree that the Purchasers and such holders, in
addition to any other remedy to which they may be entitled at law or in equity,
shall be entitled to compel specific
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performance of the respective obligations of the Company under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions
of this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at 0000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention:
Chief Financial Officer, with a copy to Xxxxx & Xxxxx, LLP, 0000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx, 00000-0000, Attention: Xxxxxx X. Xxxxxx, and if to a holder, to
the address of such holder set forth in the security register or other records
of the Company, or to such other address as the Company or any such holder may
have furnished to the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Notes and the respective successors and assigns of the
parties hereto and such holders. In the event that any transferee of any holder
of Regis trable Notes shall acquire Registrable Notes, in any manner, whether
by gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Notes shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Notes such transferee shall be
entitled to receive the benefits of, and be conclusively deemed to have agreed
to be bound by all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Notes subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made
by or on behalf of any holder of Registrable Notes, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Notes pursuant to the
Purchase Agreement and the transfer and registration of Registrable Notes by
such holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpre tation
of this Exchange and Registration Rights Agreement.
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(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture
and the form of Notes) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
the Company and the holders of at least 50 percent in aggregate principal
amount of the Registrable Notes at the time out standing. Each holder of any
Registrable Notes at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or not any
notice, writing or marking indicating such amendment or waiver appears on such
Registrable Notes or is delivered to such holder. 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 the holders whose
Registrable Notes are being sold and, tendered or registered and that does not
affect the rights of other holders, may be given by at least a majority of such
holders, determined on the basis of Registrable Notes sold, tendered or
registered.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the holders of
Registrable Notes shall be made available for inspection and copying on any
business day by any holder of Registrable Notes for proper purposes only (which
shall include any purpose related to the rights of the holders of Registrable
Notes under the Notes, the Indenture and this Agreement) at the offices of the
Company at the address thereof set forth in Section 9(c) above and at the
office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
Agreed to and accepted as of the date referred to above.
HOLLYWOOD THEATERS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxxxxxx
Chief Financial Officer
HOLLYWOOD THEATER HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxxxxxxx
Chief Financial Officer
XXXXXXX, XXXXX & CO.
BANCAMERICA SECURITIES, INC.
By: /s/ Xxxxxxx, Sachs & Co.
---------------------------------------
(Xxxxxxx, Xxxxx & Co.)
-20-
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Exhibit A
HOLLYWOOD THEATERS, INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*/
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in Hollywood Theaters, Inc. (the
"Company") 105/8% Senior Subordinated Notes due August 1, 2007 (the
"Securities") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire (the "Notice and Questionnaire").
It is important that beneficial owners of the Securities receive a
copy of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Hollywood
Theaters, Inc., 0000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx X. Xxxxxxxxxxxx.
---------------
*/ Not less than 21 calendar days from date of mailing.
-21-
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Hollywood Theaters, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
[Date]
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement") by and between
Hollywood Theaters, Inc. (the "Company"), Hollywood Theater Holdings, Inc. and
the Purchasers named therein. Pursuant to the Exchange and Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form ___ (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
105/8% Senior Subordinated Notes due August 1, 2007 (the "Securities"). A copy
of the Exchange and Registration Rights Agreement is attached hereto. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have
the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners of
Registrable Securities who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling securityholders in
the Shelf Registration Statement and (ii) may not use the Prospectus forming a
part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
-22-
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ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder
were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to
the Prospectus and as Exhibit B to the Exchange and Registration Rights
Agreement.
The Selling Securityholder hereby provides the following information
to the Company and represents and warrants that such information is accurate
and complete:
-23-
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QUESTIONNAIRE
(a) Full Legal Name of Selling Securityholder:
--------------------------------------------------------------------------
(i) Full Legal Name of Registered Holder (if not the same
as in (a) above) of Registrable Securities Listed in
Item (3) below:
--------------------------------------------------------------------------
(ii) Full Legal Name of DTC Participant (if applicable and
if not the same as (b) above) Through Which
Registrable Securities Listed in Item (3) below are
Held:
--------------------------------------------------------------------------
(b) Address for Notices to Selling Securityholder:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Telephone:
--------------------------
Fax:
--------------------------
Contact Person:
--------------------------
(c) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(i) Principal amount at maturity of Registrable Securities
beneficially owned:
------------------------------------
CUSIP No(s). of such Registrable Securities:
------------------------------
(ii) Principal amount at maturity of Securities other than
Registrable Securities beneficially owned:
-------------
CUSIP No(s). of such other Securities:
(iii) Principal amount at maturity of Registrable Securities
which the undersigned wishes to be included in the
Shelf Registration Statement:
-------------------------
-24-
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CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:
---------------------------------------------------
(d) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(e) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(f) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of sale,
or at negotiated prices. Such sales may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities exchange
or quotation service on which the Registered Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan
or pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
-25-
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(g) Whether you are a corporation or not, the following three
questions should be answered. If you are a corporation
these questions should also be answered with respect to
your officers, directors and holders of 5% or more of your
equity securities; if you are a partnership such questions
should also be answered with respect to your general
partners.
(i) Except as set forth below in this Item (7)(a), neither
the undersigned nor any of its affiliates*/ is a
member**/ of the National Association of Securities
Dealers, Inc. (the "NASD") or a person associated with
a member** of the NASD.
-----------------
* NASD Rule 2720 defines the term "affiliate" to mean a company which
controls, is controlled by or is under common control with a member. The
term affiliate is presumed to include the following:
(i) a company will be presumed to control a member if the company
beneficially owns 10 percent or more of the outstanding voting securities
of a member which is a corporation, or beneficially owns a partnership
interest in 10 percent or more of the distributable profits or losses of a
member which is a partnership;
(ii) a member will be presumed to control a company if the member and
persons associated with the member beneficially own 10 percent or more of
the outstanding voting securities of a company which is a corporation, or
beneficially own a partnership interest in 10 percent or more of the
distributable profits or losses of a company which is a partnership;
(iii) a company will be presumed to be under common control with a
member if:
(1) the same natural person or company controls both the member
and company by beneficially owning 10 percent or more of the
outstanding voting securities of a member or company which is a
corporation, or by beneficially owning a partnership interest in 10
percent or more of the distributable profits or losses of a member or
company which is a partnership; or
(2) a person having the power to direct or cause the direction of
the management or policies of the member or the company also has the
power to direct or cause the direction of the management or policies
of the other entity in question.
** Article I of the NASD's By-Laws defines the term "member" to mean any
broker or dealer admitted to membership in the NASD and defines the term
"person associated with a member" to mean every sole proprietor, partner,
officer, director or branch manager of any member, or any natural person
occupying a similar status or performing similar functions, or any natural
person engaged in the investment banking or securities business who is
directly or indirectly controlling or controlled by such member (for
example, any employee), whether or not such person is registered or exempt
from registration with the NASD.
-26-
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State any exceptions here:
(ii) Except as set forth below in this Item (7)(b), the
undersigned does not own stock or other securities of
any NASD MEMBER not purchased in the open market.
State any exceptions here:
(iii) Except as set forth below in this Item (7)(c), the
undersigned has not made any outstanding subordinated
loans to any NASD MEMBER.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M (which governs manipulation, stabilization and
trading activity during a distribution of securities).
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (7) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company, and any underwriters in an
underwritten offering of such Selling Securityholder's Registrable Securities
listed in Item(3) above, in connection with the preparation of the Shelf
Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
-27-
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and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Hollywood Theaters, Inc.
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxxx
(000) 000-0000
(ii) With a copy to:
Xxxxx & Xxxxx
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
(000) 000-0000
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
-28-
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
-----------------
---------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
-----------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT
ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxxx & Xxxxx
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
(000) 000-0000
-29-
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Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Trust Company of Texas, N.A.
Hollywood Theaters, Inc.
c/o U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Trust Officer
Re: Hollywood Theaters, Inc. (the "Company")
105/8% Senior Subordinated Notes due August 1, 2007
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount at maturity of the above-referenced
Notes pursuant to an effective Registration Statement on Form ___ (File No.
333-____) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, 199_ or in supplements thereto, and that the
aggregate principal amount at maturity of the Notes transferred are the Notes
listed in such Prospectus opposite such owner's name.
Dated:
Very truly yours,
------------------------------
(Name)
By:
-------------------------------
(Authorized Signature)
On behalf of each of the Purchasers
B-1
