EXHIBIT 10.1
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XXXXXXX ENTERPRISES, INC.,
THE GUARANTORS
LISTED ON SCHEDULE A HERETO,
AND
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
CALYON SECURITIES (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
DATED AS OF FEBRUARY 11, 2005
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of February 11, 2005, by and among Xxxxxxx Enterprises, Inc., a
Louisiana corporation (the "Company"), the Guarantors listed on Schedule A
hereto (the "Guarantors"), and Banc of America Securities LLC, Bear, Xxxxxxx &
Co. Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Calyon Securities
(USA) Inc. and SunTrust Capital Markets, Inc. (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers"), each of whom has agreed to purchase the
Company's 6.25% Senior Notes due 2013 (the "Initial Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as
of February 2, 2005 (the "Purchase Agreement"), by and among the Company, the
Guarantors and the Initial Purchasers (i) for your benefit and for the benefit
of each other Initial Purchaser and (ii) for the benefit of the holders from
time to time of the Notes (including you and each other Initial Purchaser). In
order to induce the Initial Purchasers to purchase the Initial Notes, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 5(i) of the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less
than the minimum period required pursuant to Section 3(b) hereof, and
(iii) the delivery by the Company to the Registrar under the Indenture of
Exchange Notes in the same aggregate principal amount as the aggregate
principal amount of Initial Notes that were tendered by Holders thereof
pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 6.25% Senior Notes due 2013, of the same series under
the Indenture as the Initial Notes, to be issued to Holders in exchange
for Transfer Restricted Securities pursuant to this Agreement.
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Exchange Offer: The registration by the Company under the Securities Act
of the Exchange Notes pursuant to a Registration Statement pursuant to
which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Notes in
an aggregate principal amount equal to the aggregate principal amount of
the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Initial Notes to certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Securities Act, and to certain
non-U.S. persons, in accordance with such Rule 144A and Regulation S under
the Securities Act, respectively
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 11, 2005, among the Company
and U.S. Bank National Association, as trustee (the "Trustee"), pursuant
to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Initial Notes: The 6.25% Senior Notes due 2013, of the same series under
the Indenture as the Exchange Notes, for so long as such securities
constitute Transfer Restricted Securities.
Initial Placement: The issuance and sale by the Company of the Initial
Notes to the Initial Purchasers pursuant to the Purchase Agreement.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Initial Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to the
Notes, each Person who is a Holder of Notes on the record date with
respect to the Interest Payment Date on which such Damages Payment Date
shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b)
the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus
included
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therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Trust Indenture Act: The Trust Indenture Act of 1939 as in effect on the
date of the Indenture.
Transfer Restricted Securities: Each Initial Note, until the earliest to
occur of (a) the date on which such Initial Note is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of the
Securities Act, (b) the date on which such Initial Note has been
effectively registered under the Securities Act and disposed of in
accordance with a Shelf Registration Statement and (c) the date on which
such Initial Note is distributed to the public pursuant to Rule 144 under
the Securities Act or by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering
to the public.
Section 2. Securities Subject To This Agreement
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
Section 3. Registered Exchange Offer
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company and the Guarantors shall (i)
cause to be filed with the Commission as soon as practicable after the Closing
Date, but in no event later than 90 days after the Closing Date, a Registration
Statement under the Securities Act relating to the Exchange Notes and the
Exchange Offer, (ii) use their reasonable best efforts to cause such
Registration Statement to become effective at the earliest possible time, but in
no event later than 120 days after the Closing Date, (iii) in connection with
the foregoing, file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to
become effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities Act and (C)
cause all necessary filings in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Registration Statement, commence the
Exchange Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Exchange Notes to be
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offered in exchange for the Transfer Restricted Securities and to permit resales
of Notes held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 days after the date
notice of the Exchange Offer is mailed to the Holders. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 days after the Effectiveness Target Date.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Company and the Guarantors shall use their best efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period ending on the
earlier of (i) 180 days from the date on which the Exchange Offer Registration
Statement is declared effective and (ii) the date on which a Broker-Dealer is no
longer required to deliver a prospectus in connection with market-making or
other trading activities.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180-day (or shorter as provided in the foregoing sentence) period in order to
facilitate such resales.
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Section 4. Shelf Registration
(a) If (i) the Company is not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied with), (ii) for
any reason the Exchange Offer is not Consummated within 30 days after the
Effectiveness Target Date, or (iii) any Holder of Transfer Restricted Securities
shall have notified the Company in writing within 20 Business Days following the
Closing Date that (A) such Holder is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, or (B) such Holder may not
resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Initial
Notes acquired directly from the Company or one of its affiliates, then, upon
such Holder's request, the Company and the Guarantors shall (x) cause to be
filed a shelf registration statement pursuant to Rule 415 under the Securities
Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement") on or prior to the earliest to
occur of (1) the 60th day after the date on which the Company determines that it
is not required to file the Exchange Offer Registration Statement, (2) the 60th
day after the date on which the Company receives notice from a Holder of
Transfer Restricted Securities as contemplated by clause (iii) above, and (3)
the 30th day after the Effectiveness Target Date (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(c) hereof; and (y) use
their reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 30th day after the Shelf
Filing Deadline.
(b) The Company and the Guarantors shall use their best efforts to
keep such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
following the effective date of such Shelf Registration Statement (or shorter
period that will terminate when all the Notes covered by such Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement).
(c) No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such Holder furnishes to the Company in
writing, within 20 business days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Shelf Registration Statement 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 Holder not materially misleading.
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Section 5. Additional Interest
If (i) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within three business
days by a post-effective amendment to such Registration Statement that cures
such failure and that is itself promptly declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), the Company
and the Guarantors hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Securities affected thereby additional interest ("Additional
Interest") in an amount equal to one half of one percent (0.50%) per annum on
the principal amounts of the Transfer Restricted Securities held by such Holder
during the 90-day period immediately following the occurrence of any
Registration Default and shall increase by an additional one half of one percent
(0.50%) per annum on the principal amounts of such Transfer Restricted
Securities at the end of each subsequent 90-day period, but in no event shall
such increase exceed 1.50% per annum. Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the
Additional Interest payable with respect to the Transfer Restricted Securities
as a result of the provisions of this paragraph shall cease.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such Note
shall have been satisfied in full.
Section 6. Registration Procedures
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there
is a question as to whether the Exchange Offer is permitted by applicable
law, the Company and the Guarantors hereby agree to seek a no-action
letter or other favorable decision from the Commission allowing the
Company and the Guarantors to Consummate an Exchange Offer for such
Initial Notes. The Company and the Guarantors each hereby agrees to pursue
the issuance of such a decision to the Commission staff level but shall
not be required to take commercially unreasonable action to effect a
change of Commission policy. The Company and the Guarantors each hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon
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which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a favorable resolution by the
Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of the Company, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's preparations for the
Exchange Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate
in a distribution of the securities to be acquired in the Exchange Offer
(1) could not under Commission policy as in effect on the date of this
Agreement rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters (which may include any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with
a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K if the resales are of Exchange Notes
obtained by such Holder in exchange for Initial Notes acquired by such
Holder directly from the Company.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Securities Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes by Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Securities Act or any regulation
thereunder, financial statements of the Guarantors) for the period
specified in Section 3 or 4 of this Agreement, as applicable; upon the
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occurrence of any event that would cause any such Registration Statement
or the Prospectus contained therein (A) to contain a material misstatement
or omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its reasonable
best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered
by such Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes, (D)
of the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
and the Guarantors shall use their best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each
selling Holder named in any Registration Statement, and each of the
underwriter(s), if any,
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before filing with the Commission, copies of any Registration Statement or
any Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents (excluding documents incorporated by reference
as a result of requirements for periodic reporting under the Exchange Act
prior to the initial filing of the Registration Statement) will be subject
to the review of such Holders and underwriter(s) in connection with such
sale, if any, for a period of at least three business days, and the
Company will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(excluding all such documents incorporated by reference as a result of
requirements for periodic reporting under the Exchange Act) to which an
Initial Purchaser of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall reasonably
object in writing within three business days after the receipt thereof
(such objection to be deemed timely made upon confirmation of telecopy
transmission within such period). The objection of an Initial Purchaser or
underwriter, if any, shall be deemed to be reasonable if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the Initial Purchasers, each selling
Holder named in any Registration Statement, and to the underwriter(s), if
any, make the Company's representatives and representatives of the
Guarantors available for discussion of such document and other customary
due diligence matters, and include such information in such document prior
to the filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection by each
selling Holder, the Initial Purchasers, any managing underwriter
participating in any disposition pursuant to such Registration Statement
and any attorney or accountant retained by such Initial Purchasers or any
of the underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Company and the Guarantors and
cause the Company's and the Guarantors' officers, directors and employees
to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement subsequent to the filing thereof and prior to its effectiveness;
provided, however, that the foregoing information gathering (i) shall be
coordinated on behalf of the selling Holders, Initial Purchasers, managing
underwriter or any representative thereof, by one counsel, who shall be
Shearman & Sterling LLP, or such other counsel as may be chosen by the
Holders of a majority in principal amount of Transfer Restricted
Securities and (ii) shall not be available for any such Holder who does
not agree in writing to hold such information in confidence;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
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without limitation, information relating to the "Plan of Distribution" of
the Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with at least one rating agency,
acceptable to the underwriter(s), if any, if so requested by the Holders
of a majority in aggregate principal amount of Notes covered thereby or
the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement,
as first filed with the Commission, and of each amendment thereto,
including financial statements and schedules, all documents incorporated
by reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company and the Guarantors hereby
consent to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto, subject to compliance by such Holder with the final
paragraph of this Section;
(xi) enter into, and cause the Guarantors to enter into, such
customary agreements (including an underwriting agreement), and make, and
cause the Guarantors to make, such customary representations and
warranties, and take all such other customary actions in connection
therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as may be reasonably
requested by any Initial Purchaser or by any Holder of Transfer Restricted
Securities or underwriter in connection with any sale or resale pursuant
to any Registration Statement contemplated by this Agreement; and whether
or not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company and the
Guarantors shall:
(A) furnish to each Initial Purchaser, each selling Holder
and each underwriter, if any, in such substance and scope as they
may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if applicable, the
effectiveness of the Shelf Registration Statement:
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(1) a certificate, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial
or accounting officer, treasurer, assistant treasurer,
secretary or assistant secretary of each of the Company and
the Guarantors, confirming, as of the date thereof, the
matters set forth in paragraphs (i), (ii) and (iii) of Section
5(f) of the Purchase Agreement and such other matters as such
parties may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for the
Company and the Guarantors, covering the matters set forth in
paragraph (c) of Section 5 of the Purchase Agreement and such
other matters as such parties may reasonably request, and in
any event including a statement to the effect that such
counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
independent public accountants for the Company, the Initial
Purchasers' representatives and the Initial Purchasers'
counsel in connection with the preparation of such
Registration Statement and the related Prospectus and have
considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness
of such statements; and that such counsel advises that, on the
basis of the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers and
other representatives of the Company and without independent
check or verification), no facts came to such counsel's
attention that caused such counsel to believe that the
applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto
became effective, and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
that the Prospectus contained in such Registration Statement
as of its date and, in the case of the opinion dated the date
of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such counsel
assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other financial
data included in any Registration Statement contemplated by
this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date
of Consummation of the Exchange Offer or the date of
effectiveness of the
11
Shelf Registration Statement, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary
underwritten offerings, and affirming the matters set forth in
the comfort letters delivered pursuant to Section 5(a) of the
Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company or the Guarantors pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company and
the Guarantors contemplated in clause (A)(1) above cease to be true and correct,
the Company or the Guarantors shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if requested by
such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Guarantors to cooperate with,
the selling Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may request
and do any and all other acts or things necessary or reasonably advisable
to enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however,
that neither the Company nor the Guarantors shall be required to register
or qualify as a foreign corporation where it is not then so qualified or
to take any action that would subject it to the service of process in
suits or to taxation, other than as to matters and transactions relating
to the Registration Statement, in any jurisdiction where it is not then so
subject;
(xiii) shall issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Initial Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be
registered in the name of such Holder or in the name of the purchaser(s)
of such Notes, as the case may be; in return, the Initial Notes held by
such Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with, and cause the Guarantors to cooperate with,
the selling Holders and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
and enable such Transfer Restricted Securities to be in such
12
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to
any sale of Transfer Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and
provide the Trustee under the Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for deposit
with the Depositary Trust Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of
the NASD, and use its reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies
or authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
for the twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters
in a firm or best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement;
(xx) cause the Indenture to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate, and
cause the Guarantors to cooperate, with the Trustee and the Holders of
Notes to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and to execute, and cause the Guarantors to execute, and
use its best efforts to cause the Trustee to execute, all documents that
may be required to effect such
13
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by
the Holders of a majority in aggregate principal amount of Initial Notes
or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will keep such
notice confidential and forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof, or until it is advised in writing (the "Advice") by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof or shall have received the Advice; however, no such extension
shall be taken into account in determining whether Additional Interest are due
pursuant to Section 5 hereof or the amount of such Additional Interest. It is
agreed that the Company's option to suspend use of a Registration Statement
pursuant to this paragraph for more than three business days shall be treated as
a Registration Default for purposes of Section 5. Each Holder agrees to deliver
the Prospectus, if required by the Securities Act, and, if so required, in the
manner and at the time required by the Securities Act. Each Holder further
agrees that it will use the Prospectus and any amendment or supplement thereto,
and make any offer and sale of the Notes, only in compliance with the terms of
this Agreement and all laws and regulations applicable to it, and will conform
its offering and sale of Notes to the plan of distribution set forth in the
Prospectus.
Section 7. Registration Expenses
(a) All expenses incident to the Company's or the Guarantors'
performance of or compliance with this Agreement will be borne by the Company
and/or the Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses (including filings made by any Initial Purchaser or Holder with the
NASD (and, if applicable, the reasonable fees and expenses of any "qualified
14
independent underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Exchange Notes to be issued in the
Exchange Offer and printing of Prospectuses), messenger and delivery services
and telephone; (iv) all fees and disbursements of counsel for the Company, the
Guarantors and, subject to Section 7(b) below, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the Exchange Notes on a national securities exchange or automated
quotation system pursuant to the requirements thereof, if such listing is
required pursuant to Section 6(c)(xxi) hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company and the
Guarantors (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company. Notwithstanding any requirement to the contrary set
forth in this Agreement, the Purchase Agreement or the Indenture, the Company
shall not be responsible for any costs, included but not limited to commissions,
fees, discounts of underwriter(s), brokers, dealers or agents.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Shearman & Sterling LLP unless another firm shall be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
Section 8. Indemnification
(a) The Company agrees and the Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder and (ii) each person, if
any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) any Holder (any of the persons referred to in
this clause (ii) being hereinafter referred to as a "controlling person") and
(iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder or any controlling person (any person referred to in
clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing, settling, compromising, paying or defending
any claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Holder), joint or several, directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus (or any amendment or
supplement thereto), or any
15
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in addition
to any liability which the Company may otherwise have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company or the Guarantors, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company
and the Guarantors in writing (provided, that the failure to give such notice
shall not relieve the Company or the Guarantors of their respective obligations
pursuant to this Agreement). The Company shall be liable for any settlement of
any such action or proceeding effected with the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company agrees to
indemnify and hold harmless any Indemnified Holder from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Company. The Company shall not, without
the prior written consent of each Indemnified Holder, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding. This indemnity will be in addition to any liability that the Company
and the Guarantors may otherwise have under this Agreement.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Guarantors
and any person controlling (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) the Company, or any Guarantor, and the
respective officers, directors, partners, employees, representatives and agents
of each such person (collectively, the "Company Indemnitees"), to the same
extent as the foregoing indemnity from the Company and the Guarantors to each of
the Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person in respect of which indemnity may be sought against
a Holder of Transfer Restricted Securities, such Holder shall have the rights
and duties given the Company by the preceding paragraph. In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Securities
giving rise to such indemnification obligation. This indemnity will be in
addition to any liability that the Holders may otherwise have under this
Agreement.
(c) In case any action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in and, to the
extent that it shall elect, jointly
16
with all other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party, representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, in
each of which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Holders, on the other hand, from the Initial Placement (which in the
case of the Issuer shall be deemed to be equal to the total net proceeds from
the Initial Placement as set forth on the cover page of the Offering
Memorandum), the amount of Additional Interest which did not become payable as a
result of the filing of the Registration Statement resulting in such losses,
claims, damages, liabilities, judgments actions or expenses, and such
Registration Statement, or if such allocation is not permitted by applicable
law, the relative fault of the Company and the Guarantors on the one hand, and
of the Indemnified Holder, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Indemnified Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
17
subject to the limitations set forth in the second paragraph of Section 8(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total proceeds received by such Holder with respect
to the Initial Notes 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. 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' obligations to contribute pursuant to
this Section 8(c) are several in proportion to the respective principal amount
of Initial Notes held by each of the Holders hereunder and not joint.
Section 9. Rule 144A
The Company and the Guarantors each hereby agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities 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 Transfer Restricted Securities pursuant to Rule 144A.
Section 10. Participation In Underwritten Registrations
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the terms hereof and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
Section 11. Selection Of Underwriters
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such
18
offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Company.
Section 12. Miscellaneous
(a) Remedies. The Company and the Guarantors each hereby agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate; provided, that the Additional Interest contemplated hereunder
shall be the exclusive remedy for any breach of Section 3 or 4 of the Agreement.
(b) No Inconsistent Agreements. The Company will not, and will cause
the Guarantors not to, on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Other than this Agreement, neither the Company nor the
Guarantors has entered into any agreement granting any registration rights with
respect to its debt securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company will not take any
action, and will use its reasonable best efforts to prevent any change from
occuring, with respect to the Notes that would materially and adversely affect
the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered; provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
19
Xxxxxxx Enterprises, Inc.
0000 X. Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Kitchen, Chief Financial Officer
With a copy to:
Jones, Walker, Waechter, Poitevent,
Carrere and Xxxxxxx, L.L.P.
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Attention: X. Xxxxxxxx XxXxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; 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 acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(I) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
20
(k) Entire Agreement. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President, Treasurer and Secretary
GUARANTORS:
XXXXXXX-XXXXX FUNERAL HOME, INC.
S.E. CEMETERIES OF ALABAMA, INC.
S.E. COMBINED SERVICES OF ALABAMA, INC.
S.E. FUNERAL HOMES OF ALABAMA, INC.
FOREST HILLS CEMETERY, INC.
XXXXXXX-XXXXXXX INSURANCE AGENCY, INC.
XXXXXXX-XXXXXXX, INC.
GROSS FUNERAL HOME, INC.
REST HILLS MEMORIAL PARK, INC.
S.E. FUNERAL HOMES OF ARKANSAS, INC.
ALL SOULS MORTUARY, INC.
ASHES TO ASHES, INC.
ASSUMPTION MORTUARY, INC.
BARSTOW FUNERAL HOMES, INC.
XXXXXXXX FAMILY, INC.
CALVARY MORTUARY OF LOS ANGELES, CALIFORNIA, INC.
CATALINA CHANNEL CREMATION SOCIETY
CATHOLIC MORTUARY SERVICES, INC.
XxXXXXX MEMORIAL CHAPEL, INC.
XXXXXX BROTHERS HUNTINGTON VALLEY MORTUARY
HOLY CROSS MORTUARY OF CULVER CITY, CALIFORNIA, INC.
HOLY CROSS MORTUARY OF POMONA, CALIFORNIA, INC.
XXXXXX MORTUARY, INC.
XXXXXXX FUNERAL CHAPELS, INC.
LOMBARD & CO.
N.D. XXXXX & ASSOCIATES, INC.
QUEEN OF HEAVEN MORTUARY, INC.
RESURRECTION MORTUARY, INC.
RIVER CITIES FUNERAL CHAPEL, INC.
S.E. ACQUISITION OF CALIFORNIA, INC.
00
X.X. XXXXXXXXXXX XX XXXXXX, XXXXXXXXXX, INC.
S.E. ACQUISITION OF GLENDALE, CALIFORNIA, INC.
S.E. ACQUISITION OF LANCASTER, CALIFORNIA, INC.
S.E. ACQUISITION OF LOS OSOS MORTUARY AND MEMORIAL PARK,
INC.
S.E. ACQUISITION OF OAKHURST, CALIFORNIA, INC.
S.E. ACQUISITION OF OROVILLE, CALIFORNIA, INC.
SAN DIEGO CEMETERY ASSOCIATION
SAN XXXXXXXX MISSION MORTUARY, INC.
SANTA XXXXXXX FUNERAL SERVICES, INC.
SANTA XXXXX MORTUARY, INC.
XXXXXXX MORTUARY, A CALIFORNIA CORPORATION
SDCA HOLDINGS, INC.
SIMPLICITY PLAN OF CALIFORNIA, INC.
XXXXXXX PRE-NEED SERVICES, INC.
XXXXXXXXX/XXXXXXX MORTUARY
XXXXXX X. XXXXXXXXX, INC.
XXXXXXX X. XXXXX & XXXXXX X. XXXXXXXX, INC.
SENTINEL CREMATION SOCIETIES, INC.
X.X. XXXX FUNERAL HOME, INC.
ALL FAITHS MEMORIAL PARK, INC.
ARLINGTON MEMORIAL PARK CEMETERY AND FUNERAL HOME, INC.
XXXXXXX-XXXXXXXXX FUNERAL HOMES, INC.
BAY AREA CREMATORY, INC.
XXXX XXXXX MEMORIAL CHAPEL, INC.
XXXXX OCALA FUNERAL HOME, INC.
CEMETERY MANAGEMENT, INC.
CHAPEL HILL CEMETERY, INC.
XXXXX & SON FUNERAL HOME, INC.
XXXXX X. XXXXX FUNERAL HOME, INC.
FLORIDA HILLS MEMORIAL GARDENS, INC.
GARDEN OF MEMORIES, INC.
XXXX HAVEN MEMORIAL PARK, INC.
GOOD SHEPHERD MEMORIAL GARDENS, INC.
HIGHLAND MEMORY GARDENS, INC.
XXXXXXX FUNERAL HOME AND CREMATORY, INC.
XXXX X. XXXXXX, INC.
KICLITER FUNERAL HOME, INC.
MADCEM OF FLORIDA, INC.
23
MEMORIAL PARK CEMETERY, INC.
MEMORIAL SUNSET PARK, INC.
OAKLAWN PARK CEMETERY AND FUNERAL HOME, INC.
XXXXXXX FUNERAL HOME, INC.
ROYAL PALM MEMORIAL GARDENS, INC.
SEMORAN FUNERAL HOME, INC.
SOUTH DADE-PALMS MEMORIAL PARK, INC.
XXXXXX XXXXX MEMORIAL PARK, INC.
THE SIMPLICITY PLAN, INC.
TRINITY MEMORIAL GARDENS OF LAKELAND, INC.
XXXXXX CREMATORY, INC.
XXXXXX FUNERAL HOMES, INC.
XXXXX & XXXX FUNERAL HOME, INC.
WOODLAWN MEMORY GARDENS, INC.
WOODLAWN PARK CEMETERY COMPANY
XXXXXXXX HILL MEMORIAL PARK, INC.
EASTLAWN CORPORATION
XXXXXX FAMILY FUNERAL HOME, INC.
XXXXXXX FUNERAL HOME OF XXXXX COUNTY, INC.
XXXXXXX FUNERAL HOMES, INC.
XXXXXXX AND SON FUNERAL HOME, INC.
XXXXX HILL MEMORIAL PARK, INC.
ROSEHAVEN FUNERAL HOME & CEMETERY, INC.
S.E. ACQUISITION OF LITHONIA, GEORGIA, INC.
S.E. ACQUISITION OF BLUE ISLAND, ILLINOIS, INC.
S.E. ACQUISITION OF OAK LAWN AND ORLAND PARK, ILLINOIS, INC.
XXXXXX X. XXXXXX & SON FUNERAL HOME, INC.
S.E. FUNERAL HOMES OF ILLINOIS, INC.
XXXXXXX FUNERAL HOMES, INC.
XXXXXX FUNERAL HOME, INC.
XXXXXX XXXXXXX, INC.
ACME MAUSOLEUM CORPORATION
EMPRESAS XXXXXXX - CEMENTERIOS, INC.
EMPRESAS XXXXXXX - FUNERARIAS, INC.
LAKE LAWN METAIRIE FUNERAL HOME (JOINT VENTURE)
LAKE LAWN PARK, INC.
S.E. AUSTRALIA, INC.
S.E. CEMETERIES OF LOUISIANA, INC.
S.E. FUNERAL HOMES OF LOUISIANA, INC.
24
S.E. SOUTH-CENTRAL, INC.
XXXXXXX ENTERPRISES (EUROPE) INC.
XXXXXXX RESOURCE CENTER, INC.
XXXXXXX SERVICES, INC.
BOUNDS FUNERAL HOME, INC.
CEDAR HILL CEMETERY COMPANY, INC.
CREST LAWN MEMORIAL GARDENS, INC.
DRUID RIDGE CEMETERY COMPANY
FORT LINCOLN CEMETERY, INC.
FORT LINCOLN FUNERAL HOME, INC.
GALLERY GRANITE CORPORATION
HILLCREST MEMORIAL CEMETERY, INC.
XXXXX-XXXXXXX FUNERAL HOME, INC.
XXXX X. XXXXXX FUNERAL HOME, INC.
LOUDON PARK CEMETERY COMPANY
LOUDON PARK FUNERAL HOME, INC.
NATIONAL HARMONY MEMORIAL PARK, INC.
PARKLAWN, INC.
PARKWOOD MANAGEMENT COMPANY
S.E. MID-ATLANTIC, INC.
SIMPLE TRIBUTE OF MARYLAND, INC.
THE PARKWOOD CEMETERY COMPANY
XXXXXXX X. XXXXXXXX, INC.
LAKEWOOD MEMORIAL PARK, INC.
X.X. XXXXXXXX'X SONS, INC.
DWN PROPERTIES, INC.
FUNERAL SECURITY PLANS, INC.
NEPTUNE SOCIETY OF NEVADA, INC.
RENO MEMORIAL, INC.
S.E. ACQUISITION OF NEVADA, INC.
S.E. ACQUISITION OF RENO, NEVADA, INC.
XXXXX & XXXXX XXXXXXXX-XXXXXXX MORTUARY
S.E. ACQUISITION OF CLIFTON, NEW JERSEY, INC.
S.E. ACQUISITION OF SANTA FE, NEW MEXICO, INC.
X.X. XXXXXXXXX AND SONS, INC.
CORNELL & XXXXXXX, INC.
XXXXXXXXX XXXXXXXX MEMORIAL HOME, INC.
XXXXXX FUNERAL SERVICE, INC.
XXXX XXXXXX FUNERAL HOME, INC.
S.E. ACQUISITION OF FREDONIA, NEW YORK, INC.
STRONG & XXXXX FUNERAL HOME, INC.
CATAWBA MEMORIAL PARK, INC.
XXXXX FUNERAL HOME, INC.
25
XXXXXXX - HILLCREST, INC.
XXXXXXXX'X FUNERAL HOME, INC.
MONTLAWN MEMORIAL PARK, INC.
S.E. CEMETERIES OF NORTH CAROLINA, INC.
S.E. FUNERAL HOMES OF NORTH CAROLINA, INC.
XXXXXX/XXXXXXXXX FUNERAL SERVICE, INC.
CASCADE CREMATORY, INC.
CHAPEL OF THE ROSES, INC.
CHAPEL OF THE VALLEY FUNERAL HOME, INC.
XXXXXX, INC.
X.X. XXXXXXXXX, INC.
X.X. XXXXXX AND SON MORTUARY, INC.
S.E. BEND NR, INC.
X.X. XXXXXXXXXXX XX XXXXXX XXXXX, XXXXXX, INC.
S.E. ACQUISITION OF OREGON, INC.
S.E. ACQUISITION OF REEDSPORT, OREGON, INC.
SUNSET HILLS MEMORIAL PARK
S.E. BEND TDHM, INC.
XXXXXXXX XXXXXXXX P. M., INC.
XXXXXX XXXXXXXXXX MEMORIAL PARK, INC.
XXXX & NICE SUBURBAN CHAPEL, INC.
XXXX & NICE, INC.
PET HAVEN, INC.
S.E. ACQUISITION OF PENNSYLVANIA, INC.
SUNSET MEMORIAL PARK COMPANY
XXXXXX FUNERAL HOME
S.E. CEMETERIES OF SOUTH CAROLINA, INC.
S.E. COMBINED SERVICES OF SOUTH CAROLINA, INC.
S.E. FUNERAL HOMES OF SOUTH CAROLINA, INC.
MONTE VISTA BURIAL PARK, INC.
MT. JULIET MEMORIAL GARDENS, INC.
XXXX FUNERAL HOME OF LEBANON, INC.
S.E. COMBINED SERVICES OF TENNESSEE, INC.
S.E. FUNERAL HOMES OF TENNESSEE, INC.
THE NASHVILLE HISTORIC CEMETERY ASSOCIATION, INC.
ABBEY PLAN OF TEXAS, INC.
XXXXX FUNERAL HOME, INC.
EMERALD HILLS FUNERAL CORPORATION
26
GUARDIAN CREMATION SOCIETY, INC.
XXXXX FUNERAL HOME, INC.
PASADENA FUNERAL HOME, INC.
S.E. FUNERAL HOMES OF TEXAS, INC.
S.E. CEMETERIES OF TEXAS, INC.
SIMPLICITY PLAN OF TEXAS, INC.
CLINCH VALLEY MEMORIAL CEMETERY, INC.
XXXXXX FUNERAL HOMES, INCORPORATED
XXXXXX PFP, INC.
MONTICELLO MEMORY GARDENS, INC.
S.E. CEMETERIES OF VIRGINIA, INC.
S.E. FUNERAL HOMES OF VIRGINIA, INC.
CREMATION SOCIETY NORTHWEST, INC.
X.X. XXXXXXXXXXX & SONS
S.E.E.S. OF VANCOUVER, INC.
S.E. ACQUISITION OF WASHINGTON, INC.
XXXXXXXX-XXXXXXXX-XXX FUNERAL HOME, INC.
XXXXXXXX & XXXXX FUNERAL HOME, INC.
EASTERN CEMETERY ASSOCIATES, INC.
KANAWHA PLAZA PARTNERSHIP
XXXXXXX-XXXXXXXXX MORTUARY, INC.
LOI CHARLESTON, INC.
NATIONAL EXCHANGE TRUST, LTD.
NATIONAL FUNERAL SERVICES, INCORPORATED
S.E. ACQUISITION OF MALDEN, WEST VIRGINIA, INC.
S.E. CEMETERIES OF WEST VIRGINIA, INC.
S.E. FUNERAL HOMES OF WEST VIRGINIA, INC.
XXXXXX FUNERAL HOME, INC.
CEMETERY SERVICES, INC.
WISCONSIN MEMORIAL PARK COMPANY, INC.
S.E. CEMETERIES OF WISCONSIN, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
27
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CALYON SECURITIES (USA) INC.
SUNTRUST CAPITAL MARKETS, INC.
BY: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Managing Director
SCHEDULE A
GUARANTORS
JURISDICTION OF
GUARANTOR ORGANIZATION
--------- ------------
XXXXXXX-XXXXX FUNERAL HOME, INC. ALABAMA
S.E. CEMETERIES OF ALABAMA, INC. ALABAMA
S.E. COMBINED SERVICES OF ALABAMA, INC. ALABAMA
S.E. FUNERAL HOMES OF ALABAMA, INC. ALABAMA
FOREST HILLS CEMETERY, INC. ARKANSAS
XXXXXXX-XXXXXXX INSURANCE AGENCY, INC. ARKANSAS
XXXXXXX-XXXXXXX, INC. ARKANSAS
GROSS FUNERAL HOME, INC. ARKANSAS
REST HILLS MEMORIAL PARK, INC. ARKANSAS
S.E. FUNERAL HOMES OF ARKANSAS, INC. ARKANSAS
ALL SOULS MORTUARY, INC. CALIFORNIA
ASHES TO ASHES, INC. CALIFORNIA
ASSUMPTION MORTUARY, INC. CALIFORNIA
BARSTOW FUNERAL HOMES, INC. CALIFORNIA
XXXXXXXX FAMILY, INC. CALIFORNIA
CALVARY MORTUARY OF LOS ANGELES, CALIFORNIA, INC. CALIFORNIA
CATALINA CHANNEL CREMATION SOCIETY CALIFORNIA
CATHOLIC MORTUARY SERVICES, INC. CALIFORNIA
XxXXXXX MEMORIAL CHAPEL, INC. CALIFORNIA
XXXXXX BROTHERS HUNTINGTON VALLEY MORTUARY CALIFORNIA
HOLY CROSS MORTUARY OF CULVER CITY, CALIFORNIA, INC. CALIFORNIA
HOLY CROSS MORTUARY OF POMONA, CALIFORNIA, INC. CALIFORNIA
XXXXXX MORTUARY, INC. CALIFORNIA
XXXXXXX FUNERAL CHAPELS, INC. CALIFORNIA
LOMBARD & CO. CALIFORNIA
N.D. XXXXX & ASSOCIATES, INC. CALIFORNIA
QUEEN OF HEAVEN MORTUARY, INC. CALIFORNIA
RESURRECTION MORTUARY, INC. CALIFORNIA
RIVER CITIES FUNERAL CHAPEL, INC. CALIFORNIA
S.E. ACQUISITION OF CALIFORNIA, INC. CALIFORNIA
S.E. ACQUISITION OF DELANO, CALIFORNIA, INC. CALIFORNIA
S.E. ACQUISITION OF GLENDALE, CALIFORNIA, INC. CALIFORNIA
S.E. ACQUISITION OF LANCASTER, CALIFORNIA, INC. CALIFORNIA
S.E. ACQUISITION OF LOS OSOS MORTUARY AND MEMORIAL PARK, INC. CALIFORNIA
S.E. ACQUISITION OF OAKHURST, CALIFORNIA, INC. CALIFORNIA
S.E. ACQUISITION OF OROVILLE, CALIFORNIA, INC. CALIFORNIA
SAN DIEGO CEMETERY ASSOCIATION CALIFORNIA
SAN XXXXXXXX MISSION MORTUARY, INC. CALIFORNIA
SANTA XXXXXXX FUNERAL SERVICES, INC. CALIFORNIA
SANTA XXXXX MORTUARY, INC. CALIFORNIA
XXXXXXX MORTUARY, A CALIFORNIA CORPORATION CALIFORNIA
SDCA HOLDINGS, INC. CALIFORNIA
SIMPLICITY PLAN OF CALIFORNIA, INC. CALIFORNIA
XXXXXXX PRE-NEED SERVICES, INC. CALIFORNIA
XXXXXXXXX/XXXXXXX MORTUARY CALIFORNIA
XXXXXX X. XXXXXXXXX, INC. CALIFORNIA
XXXXXXX X. XXXXX & XXXXXX X. XXXXXXXX, INC. CALIFORNIA
SENTINEL CREMATION SOCIETIES, INC. DELAWARE
JURISDICTION OF
GUARANTOR ORGANIZATION
--------- ------------
X.X. XXXX FUNERAL HOME, INC. FLORIDA
ALL FAITHS MEMORIAL PARK, INC. FLORIDA
ARLINGTON MEMORIAL PARK CEMETERY AND FUNERAL HOME, INC. FLORIDA
XXXXXXX-XXXXXXXXX FUNERAL HOMES, INC. FLORIDA
BAY AREA CREMATORY, INC. FLORIDA
XXXX XXXXX MEMORIAL CHAPEL, INC. FLORIDA
XXXXX OCALA FUNERAL HOME, INC. FLORIDA
CEMETERY MANAGEMENT, INC. FLORIDA
CHAPEL HILL CEMETERY, INC. FLORIDA
XXXXX & SON FUNERAL HOME, INC. FLORIDA
XXXXX X. XXXXX FUNERAL HOME, INC. FLORIDA
FLORIDA HILLS MEMORIAL GARDENS, INC. FLORIDA
GARDEN OF MEMORIES, INC. FLORIDA
XXXX HAVEN MEMORIAL PARK, INC. FLORIDA
GOOD SHEPHERD MEMORIAL GARDENS, INC. FLORIDA
HIGHLAND MEMORY GARDENS, INC. FLORIDA
XXXXXXX FUNERAL HOME AND CREMATORY, INC. FLORIDA
XXXX X. XXXXXX, INC. FLORIDA
KICLITER FUNERAL HOME, INC. FLORIDA
MADCEM OF FLORIDA, INC. FLORIDA
MEMORIAL PARK CEMETERY, INC. FLORIDA
MEMORIAL SUNSET PARK, INC. FLORIDA
OAKLAWN PARK CEMETERY AND FUNERAL HOME, INC. FLORIDA
XXXXXXX FUNERAL HOME, INC. FLORIDA
ROYAL PALM MEMORIAL GARDENS, INC. FLORIDA
SEMORAN FUNERAL HOME, INC. FLORIDA
SOUTH DADE-PALMS MEMORIAL PARK, INC. FLORIDA
XXXXXX XXXXX MEMORIAL PARK, INC. FLORIDA
THE SIMPLICITY PLAN, INC. FLORIDA
TRINITY MEMORIAL GARDENS OF LAKELAND, INC. FLORIDA
XXXXXX CREMATORY, INC. FLORIDA
XXXXXX FUNERAL HOMES, INC. FLORIDA
XXXXX & XXXX FUNERAL HOME, INC. FLORIDA
WOODLAWN MEMORY GARDENS, INC. FLORIDA
WOODLAWN PARK CEMETERY COMPANY FLORIDA
XXXXXXXX HILL MEMORIAL PARK, INC. GEORGIA
EASTLAWN CORPORATION XXXXXXX
XXXXXX FAMILY FUNERAL HOME, INC. XXXXXXX
XXXXXXX FUNERAL HOME OF XXXXX COUNTY, INC. XXXXXXX
XXXXXXX FUNERAL HOMES, INC. XXXXXXX
XXXXXXX AND SON FUNERAL HOME, INC. XXXXXXX
XXXXX XXXX MEMORIAL PARK, INC. XXXXXXX
XXXXXXXXX FUNERAL HOME & CEMETERY, INC. GEORGIA
S.E. ACQUISITION OF LITHONIA, GEORGIA, INC. GEORGIA
S.E. ACQUISITION OF BLUE ISLAND, ILLINOIS, INC. ILLINOIS
S.E. ACQUISITION OF OAK LAWN AND ORLAND PARK, ILLINOIS, INC. ILLINOIS
XXXXXX X. XXXXXX & SON FUNERAL HOME, INC. ILLINOIS
S.E. FUNERAL HOMES OF ILLINOIS, INC. ILLINOIS
XXXXXXX FUNERAL HOMES, INC. IOWA
XXXXXX FUNERAL HOME, INC. IOWA
XXXXXX XXXXXXX, INC. KANSAS
ACME MAUSOLEUM CORPORATION LOUISIANA
EMPRESAS XXXXXXX - CEMENTERIOS, INC. LOUISIANA
2
JURISDICTION OF
GUARANTOR ORGANIZATION
--------- --------------
EMPRESAS XXXXXXX - FUNERARIAS, INC. LOUISIANA
LAKE LAWN METAIRIE FUNERAL HOME (JOINT VENTURE) LOUISIANA
LAKE LAWN PARK, INC. LOUISIANA
S.E. AUSTRALIA, INC. LOUISIANA
S.E. CEMETERIES OF LOUISIANA, INC. LOUISIANA
S.E. FUNERAL HOMES OF LOUISIANA, INC. LOUISIANA
S.E. SOUTH-CENTRAL, INC. LOUISIANA
XXXXXXX ENTERPRISES (EUROPE) INC. LOUISIANA
XXXXXXX RESOURCE CENTER, INC. LOUISIANA
XXXXXXX SERVICES, INC. LOUISIANA
BOUNDS FUNERAL HOME, INC. MARYLAND
CEDAR HILL CEMETERY COMPANY, INC. MARYLAND
CREST LAWN MEMORIAL GARDENS, INC. MARYLAND
DRUID RIDGE CEMETERY COMPANY MARYLAND
FORT LINCOLN CEMETERY, INC. MARYLAND
FORT LINCOLN FUNERAL HOME, INC. MARYLAND
GALLERY GRANITE CORPORATION MARYLAND
HILLCREST MEMORIAL CEMETERY, INC. MARYLAND
XXXXX-XXXXXXX FUNERAL HOME, INC. MARYLAND
XXXX X. XXXXXX FUNERAL HOME, INC. MARYLAND
LOUDON PARK CEMETERY COMPANY MARYLAND
LOUDON PARK FUNERAL HOME, INC. MARYLAND
NATIONAL HARMONY MEMORIAL PARK, INC. MARYLAND
PARKLAWN, INC. MARYLAND
PARKWOOD MANAGEMENT COMPANY MARYLAND
S.E. MID-ATLANTIC, INC. MARYLAND
SIMPLE TRIBUTE OF MARYLAND, INC. MARYLAND
THE PARKWOOD CEMETERY COMPANY MARYLAND
XXXXXXX X. XXXXXXXX, INC. MARYLAND
LAKEWOOD MEMORIAL PARK, INC. MISSISSIPPI
X.X. XXXXXXXX'X SONS, INC. MISSOURI
DWN PROPERTIES, INC. MISSOURI
FUNERAL SECURITY PLANS, INC. MISSOURI
NEPTUNE SOCIETY OF NEVADA, INC. NEVADA
RENO MEMORIAL, INC. NEVADA
S.E. ACQUISITION OF NEVADA, INC. NEVADA
S.E. ACQUISITION OF RENO, NEVADA, INC. NEVADA
XXXXX & XXXXX XXXXXXXX-XXXXXXX MORTUARY NEW JERSEY
S.E. ACQUISITION OF CLIFTON, NEW JERSEY, INC. NEW JERSEY
S.E. ACQUISITION OF SANTA FE, NEW MEXICO, INC. NEW MEXICO
X.X. XXXXXXXXX AND SONS, INC. NEW YORK
CORNELL & XXXXXXX, INC. NEW YORK
XXXXXXXXX XXXXXXXX MEMORIAL HOME, INC. NEW YORK
XXXXXX FUNERAL SERVICE, INC. NEW YORK
XXXX XXXXXX FUNERAL HOME, INC. NEW YORK
S.E. ACQUISITION OF FREDONIA, NEW YORK, INC. NEW YORK
STRONG & XXXXX FUNERAL HOME, INC. NEW YORK
CATAWBA MEMORIAL PARK, INC. NORTH CAROLINA
EVANS FUNERAL HOME, INC. NORTH CAROLINA
GARRETT - HILLCREST, INC. NORTH CAROLINA
MCLAURIN'S FUNERAL HOME, INC. NORTH CAROLINA
MONTLAWN MEMORIAL PARK, INC. NORTH CAROLINA
S.E. CEMETERIES OF NORTH CAROLINA, INC. NORTH CAROLINA
3
JURISDICTION OF
GUARANTOR ORGANIZATION
--------- --------------
S.E. FUNERAL HOMES OF NORTH CAROLINA, INC. NORTH CAROLINA
AMLING/XXXXXXXXX FUNERAL SERVICE, INC. OREGON
CASCADE CREMATORY, INC. OREGON
CHAPEL OF THE ROSES, INC. OREGON
CHAPEL OF THE VALLEY FUNERAL HOME, INC. OREGON
XXXXXX, INC. OREGON
X.X. XXXXXXXXX, INC. OREGON
X.X. XXXXXX AND SON MORTUARY, INC. OREGON
S.E. BEND NR, INC. OREGON
S.E. ACQUISITION OF MYRTLE CREEK, OREGON, INC. OREGON
S.E. ACQUISITION OF OREGON, INC. OREGON
S.E. ACQUISITION OF REEDSPORT, OREGON, INC. OREGON
SUNSET HILLS MEMORIAL PARK OREGON
S.E. BEND TDHM, INC. OREGON
XXXXXXXX XXXXXXXX P. M., INC. PENNSYLVANIA
XXXXXX XXXXXXXXXX MEMORIAL PARK, INC. PENNSYLVANIA
XXXX & NICE SUBURBAN CHAPEL, INC. PENNSYLVANIA
XXXX & NICE, INC. PENNSYLVANIA
PET HAVEN, INC. PENNSYLVANIA
S.E. ACQUISITION OF PENNSYLVANIA, INC. PENNSYLVANIA
SUNSET MEMORIAL PARK COMPANY PENNSYLVANIA
XXXXXX FUNERAL HOME SOUTH CAROLINA
S.E. CEMETERIES OF SOUTH CAROLINA, INC. SOUTH CAROLINA
S.E. COMBINED SERVICES OF SOUTH CAROLINA, INC. SOUTH CAROLINA
S.E. FUNERAL HOMES OF SOUTH CAROLINA, INC. SOUTH CAROLINA
MONTE VISTA BURIAL PARK, INC. TENNESSEE
MT. JULIET MEMORIAL GARDENS, INC. TENNESSEE
XXXX FUNERAL HOME OF LEBANON, INC. TENNESSEE
S.E. COMBINED SERVICES OF TENNESSEE, INC. TENNESSEE
S.E. FUNERAL HOMES OF TENNESSEE, INC. TENNESSEE
THE NASHVILLE HISTORIC CEMETERY ASSOCIATION, INC. TENNESSEE
ABBEY PLAN OF TEXAS, INC. TEXAS
XXXXX FUNERAL HOME, INC. TEXAS
EMERALD HILLS FUNERAL CORPORATION TEXAS
GUARDIAN CREMATION SOCIETY, INC. TEXAS
XXXXX FUNERAL HOME, INC. TEXAS
PASADENA FUNERAL HOME, INC. TEXAS
S.E. FUNERAL HOMES OF TEXAS, INC. TEXAS
S.E. CEMETERIES OF TEXAS, INC. TEXAS
SIMPLICITY PLAN OF TEXAS, INC. TEXAS
CLINCH VALLEY MEMORIAL CEMETERY, INC. XXXXXXXX
XXXXXX FUNERAL HOMES, INCORPORATED XXXXXXXX
XXXXXX PFP, INC. XXXXXXXX
XXXXXXXXXX MEMORY GARDENS, INC. VIRGINIA
S.E. CEMETERIES OF VIRGINIA, INC. VIRGINIA
S.E. FUNERAL HOMES OF VIRGINIA, INC. VIRGINIA
CREMATION SOCIETY NORTHWEST, INC. WASHINGTON
X.X. XXXXXXXXXXX & SONS WASHINGTON
S.E.E.S. OF VANCOUVER, INC. WASHINGTON
S.E. ACQUISITION OF WASHINGTON, INC. WASHINGTON
XXXXXXXX-XXXXXXXX-XXX FUNERAL HOME, INC. WEST VIRGINIA
CASDORPH & XXXXX FUNERAL HOME, INC. WEST VIRGINIA
EASTERN CEMETERY ASSOCIATES, INC. WEST VIRGINIA
4
JURISDICTION OF
GUARANTOR ORGANIZATION
--------- --------------
KANAWHA PLAZA PARTNERSHIP WEST VIRGINIA
KLINGEL-CARPENTER MORTUARY, INC. WEST VIRGINIA
LOI CHARLESTON, INC. WEST VIRGINIA
NATIONAL EXCHANGE TRUST, LTD. WEST VIRGINIA
NATIONAL FUNERAL SERVICES, INCORPORATED WEST VIRGINIA
S.E. ACQUISITION OF MALDEN, WEST VIRGINIA, INC. WEST VIRGINIA
S.E. CEMETERIES OF WEST VIRGINIA, INC. WEST VIRGINIA
S.E. FUNERAL HOMES OF WEST VIRGINIA, INC. WEST VIRGINIA
WILSON FUNERAL HOME, INC. WEST VIRGINIA
CEMETERY SERVICES, INC. WISCONSIN
WISCONSIN MEMORIAL PARK COMPANY, INC. WISCONSIN
S.E. CEMETERIES OF WISCONSIN, INC. WISCONSIN
5
