COLEMAN CABLE, INC. 9 7/8% Senior Notes Due 2012 REGISTRATION RIGHTS AGREEMENT
EXHIBIT-4.5
XXXXXXX CABLE, INC.
$120,000,000
9 7/8% Senior Notes Due 2012
April 2, 2007
Wachovia Capital Markets, LLC
As Initial Purchaser under the Purchase Agreement
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX 0604
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
As Initial Purchaser under the Purchase Agreement
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX 0604
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
This Registration Rights Agreement (this “Agreement”) is made and entered into
between Xxxxxxx Cable, Inc., a Delaware corporation (the “Company”), the guarantors
listed on the signature page hereto (the “Guarantors”) and Wachovia Capital Markets,
LLC (the “Initial Purchaser”).
This Agreement is entered into in connection with the Purchase Agreement, dated March 27,
2007, by and between the Company, the Guarantors and the Initial Purchaser (the “Purchase
Agreement”), which provides for the issuance and sale by the Company to the Initial
Purchaser of $120,000,000 aggregate principal amount of the Company’s 9 7/8% Senior Notes Due
2012 (the “Notes”). In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide the registration
rights set forth in this Agreement for the benefit of the Initial Purchaser and its direct and
indirect transferees. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this Agreement,
the following capitalized defined terms shall have the following meanings:
“Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Additional Interest” has the meaning set forth in Section 4 hereto.
“Affiliate” means, with respect to any specified person, any other person that,
directly or indirectly, controls, is controlled by, or is under common control with, such
specified person. For purposes of this definition, control of a person means the power, direct
or indirect, to direct or cause the direction of the management and policies of such person
whether by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Agreement” has the meaning set forth in the preamble hereto.
“Business Day” means any day excluding Saturday, Sunday or any other day which is
a legal holiday under the laws of New York, New York or is a day on which banking institutions
therein located are authorized or required by law or other governmental action to close.
“Closing Date” shall mean the Closing Date as defined in the Purchase Agreement.
“Commission” means the Securities and Exchange Commission.
“Consummate” means, with respect to a Registered Exchange Offer, the completion
of all of the following: (a) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the Registered Exchange
Offer, (b) the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Registered Exchange Offer open for a period not less than the
minimum period required pursuant to Section 2(c)(ii) hereof, (c) the Company’s acceptance for
exchange of all Transfer Restricted Notes duly tendered and not validly withdrawn pursuant to
the Registered Exchange Offer and (d) the delivery of duly executed and authenticated Exchange
Notes by the Company to the registrar under the Indenture in the same aggregate principal
amount as the aggregate principal amount of Transfer Restricted Notes duly tendered and not
validly withdrawn by Holders thereof pursuant to the Registered Exchange Offer and the
delivery of such Exchange Notes to such Holders. The term “Consummation” has a meaning
correlative to the foregoing.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Exchange Notes” means debt securities of the Company substantially identical in
all material respects to the Notes other than the issue date (except that the Additional
Interest provisions and the transfer restrictions pertaining to the Notes will be modified or
eliminated, as appropriate), to be issued under the Indenture.
“Exchange Offer Registration Period” means the 180-day period following the
Consummation of the Registered Exchange Offer, exclusive of any period during which any stop
order shall be in effect suspending the effectiveness of the Exchange Offer Registration
Statement; provided, however, that in the event that all resales of Exchange
Notes (including any resales by Participating Broker-Dealers) covered by such Exchange Offer
Registration Statement have been made, the Exchange Offer Registration Statement need not
thereafter remain continuously effective for such period.
“Exchange Offer Registration Statement” means a registration statement of the
Company and the Guarantors on an appropriate form under the Act with respect to the Registered
Exchange Offer, all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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“Filing Date” has the meaning set forth in Section 2(a) hereto.
“Holder” means any holder from time to time of Transfer Restricted Notes or
Exchange Notes (including the Initial Purchaser).
“Indenture” means the indenture relating to the Notes and the Exchange Notes,
dated as of September 28, 2004, between the Company and Deutsche Bank National Trust Company,
as Trustee, as the same may be amended, supplemented, waived or otherwise modified from time
to time in accordance with the terms thereof.
“Initial Purchaser” has the meaning set forth in the
preamble hereto.
“Losses” has the meaning set forth in
Section 8(d) hereto.
“Majority Holders” means the Holders of a majority of the aggregate principal
amount of Transfer Restricted Notes registered under a Registration Statement.
“Managing Underwriters” means the investment banker or investment bankers and
manager or managers that shall administer an underwritten offering under a Shelf Registration
Statement.
“Notes” has the meaning set forth in the preamble hereto.
“Participating Broker-Dealer” means any Holder (which may include the
Initial Purchaser) that is a broker-dealer electing to exchange Notes acquired for its
own account as a result of market-making activities or other trading activities for
Exchange Notes.
“Private Exchange Notes” has the meaning set forth in Section 2(f) hereof.
“Prospectus” means the prospectus included in any Registration Statement
(including a prospectus that discloses information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A under the Act or any
similar rule that may be adopted by the Commission), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion of the
Transfer Restricted Notes covered by such Registration Statement, and all amendments and
supplements to the Prospectus.
“Purchase Agreement” has the meaning set forth in the preamble hereto.
“Registered Exchange Offer” means an offer by the Company to issue and deliver a
like principal amount of Exchange Notes in exchange for Transfer Restricted Notes.
“Registration Expenses” shall mean any and all expenses incident to performance
of or compliance by the Company and the Guarantors with this Agreement, including without
limitation: (i) all Commission, stock exchange or National Association of Securities Dealers,
Inc. registration and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable fees and disbursements
of counsel for any underwriters or Holders in connection with blue sky qualification of any of
the Exchange
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Notes or Transfer Restricted Notes), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any Registration Statement,
any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees and
disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for
the Company and, in the case of a Shelf Registration Statement, the fees and disbursements of
one counsel for the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchaser) and (viii) the fees and disbursements
of the independent public accountants of the Company, including the expenses of any special
audits or “cold comfort” letters required by or incident to such performance and compliance,
but excluding fees and expenses of counsel to the underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Transfer Restricted Notes by a
Holder.
“Registration Statement” means any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Transfer Restricted Notes (including any
guarantees of each thereof) pursuant to the provisions of this Agreement, amendments and
supplements to such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto, and all material
incorporated by reference therein.
“Shelf Registration” means a registration effected pursuant to Section 3
hereof.
“Shelf Registration Event Date” has the meaning set forth in
Section 3(a) hereof.
“Shelf Registration Period” has the meaning set
forth in Section 3(c) hereof.
“Shelf
Registration Statement” means a “shelf” registration statement of the
Company filed pursuant to the provisions of Section 3 hereof, which covers some or all of the
Transfer Restricted Notes, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, and which may be in the format of
an amendment to the Exchange Offer Registration Statement if permitted by the Commission, all
amendments and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
“Transfer Restricted Notes” means each Note upon original issuance thereof and at
all times subsequent thereto, each Exchange Note as to which Section 3(a)(iii) or Section
3(a)(v) apply upon original issuance and at all times subsequent thereto, until in the case of
any such Note or Exchange Note, as the case may be, the earliest to occur of (i) the date on
which such Note has been exchanged by a person other than a Participating Broker-Dealer for an
Exchange Note (other than with respect to an Exchange Note as to which Section 3(a)(iii) or
Section 3(a)(v) apply), (ii) with respect to Exchange Notes received by Participating
Broker-Dealers in the Registered Exchange Offer, the date on which such Exchange Note has been
sold by such Participating Broker-Dealer by means of the Prospectus contained in the Exchange
Offer Regis-
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tration Statement, (iii) a Shelf Registration Statement covering such Note or Exchange
Note, as the case may be, has been declared effective by the Commission and such Note or
Exchange Note, as the case may be, has been disposed of in accordance with the plan of
distribution set forth in such effective Shelf Registration Statement, (iv) the date on which
such Note or Exchange Note, as the case may be, is distributed to the public pursuant to Rule
144 under circumstances in which any legend borne by such Note relating to restrictions on
transferability thereof, under the Act or otherwise, is removed by the Company, or (v) such
Note or Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trustee” means the trustee with respect to the Notes or Exchange Notes, as
applicable, under the Indenture.
2. Registered Exchange Offer; Resales of Exchange Notes by Participating
Broker-Dealers; Private Exchange.
(a) The Company and the Guarantors shall prepare and, not later than 210
days from the Closing Date, shall file with the Commission the Exchange Offer
Registration
Statement with respect to the Registered Exchange Offer (the date of such filing
hereinafter
referred to as the “Filing Date”). The Company and the Guarantors shall use their
commercially
reasonable efforts (i) to cause the Exchange Offer Registration Statement to be declared
effective
under the Act within 300 days from the Closing Date and (ii) to have such Exchange Offer
Registration Statement remain effective until the closing of the Registered Exchange
Offer. The
Company shall commence the Registered Exchange Offer promptly after the Exchange Offer
Registration Statement has been declared effective by the Commission and use its
commercially
reasonable efforts to Consummate the Registered Exchange Offer within 30 days from the
date
the Exchange Offer Registration Statement becomes effective.
(b) The objective of such Registered Exchange Offer is to enable each Holder
electing to exchange Transfer Restricted Notes for Exchange Notes (assuming that such
Holder
(x) is not an Affiliate of the Company, (y) is not a broker-dealer that acquired the
Transfer
Restricted Notes in a transaction other than as a part of its market-making or other
trading
activities and (z) if such Holder is not a broker-dealer, acquires the Exchange Notes in
the
ordinary course of such Holder’s business, is not participating in the distribution of
the Exchange
Notes and has no arrangements or intentions with any person to make a distribution of the
Exchange Notes) to resell such Exchange Notes from and after their receipt without any
limitations or restrictions under the Act and without material restrictions under the
securities
laws of a substantial proportion of the several states of the United States. Each Holder
participating in the Registered Exchange Offer shall be required to represent to the
Company that
at the time of the tender of its Notes pursuant to the Registered Exchange Offer each of
the items
listed in subsections (x), (y) and (z) of this Section 2(b) is true.
(c) In connection with the Registered Exchange Offer, the Company shall:
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(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance for not less
than 20 Business Days (or longer if required by applicable law) after the date notice
thereof is mailed to Holders;
(iii) permit Holders to withdraw tendered Notes at any time prior to 5:00
p.m. New York City time on the last Business Day on which the Registered Exchange Offer
shall remain open;
(iv) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York; and
(v) comply in all material respects with all applicable laws relating to
the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered Exchange Offer,
the Company shall:
(i) accept for exchange all the Notes validly tendered and not withdrawn
pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all of the Notes so
accepted for exchange; and
(iii) execute and cause the Trustee promptly to authenticate and deliver to
each Holder Exchange Notes equal in principal amount to the Transfer Restricted Notes
of such Holder so accepted for exchange.
(e) The Initial Purchaser and the Company acknowledge that, pursuant to
interpretations by the staff of the Commission of Section 5 of the Act, and in the
absence of an
applicable exemption therefrom, each Participating Broker-Dealer is required to deliver a
prospectus meeting the requirements of the Act in connection with a sale of any Exchange
Notes
received by such Participating Broker-Dealer pursuant to the Registered Exchange Offer in
exchange for Transfer Restricted Notes acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the Company will allow
Participating
Broker-Dealers and other persons, if any, with similar prospectus delivery requirements
to use
the Prospectus contained in the Exchange Offer Registration Statement during the Exchange
Offer Registration Period in connection with the resale of such Exchange Notes and shall:
(i) include the information set forth in (a) Annex A hereto on the cover of
the Prospectus forming a part of the Exchange Offer Registration Statement; (b) Annex B
hereto in the forepart of the Prospectus forming a part of the Exchange Offer
Registration Statement in a section setting forth details of the Registered Exchange
Offer; (c) Annex C hereto in the plan of distribution section of the Prospectus forming
a part of the Exchange Offer Registration Statement, and (d) Annex D hereto in the
letter of transmit-
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tal delivered pursuant to the Registered Exchange Offer, in each case substantially in
the form specified therein, subject to applicable Commission requirements; and
(ii) use its best efforts to keep the Exchange Offer Registration Statement
continuously effective under the Act during the Exchange Offer Registration Period for
delivery of the Prospectus included therein by Participating Broker-Dealers in
connection with sales of Exchange Notes received pursuant to the Registered Exchange
Offer, as contemplated by Section 5(h) below.
(f) In the event that the Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of Transfer
Restricted Notes constituting any portion of an unsold allotment, at the request of the
Initial Purchaser, the Company shall issue and deliver to such Initial Purchaser, or to any
party purchasing Transfer Restricted Notes or Exchange Notes registered under the Shelf
Registration Statement from the Initial Purchaser, in exchange for such Transfer Restricted
Notes, a like principal amount of Exchange Notes to the extent permitted by applicable law
(the “Private Exchange Notes”). The Company shall use its commercially reasonable
efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Notes as for Exchange Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) the Company and the Guarantors are not permitted to file the Exchange
Offer Registration Statement or to Consummate the Registered Exchange Offer in accordance with
Section 2 hereof because the Registered Exchange Offer is not permitted by applicable law or
the applicable interpretations of the staff of the Commission, (ii) for any other reason the
Registered Exchange Offer is not Consummated within 30 days after the Exchange Offer
Registration Statement is declared effective, (iii) any Holder notifies the Company on or
prior to the 30th day following the Consummation of the Registered Exchange Offer that (A)
such Holder is not eligible to participate in the Registered Exchange Offer due to applicable
law or the applicable interpretations of the staff of the Commission, (B) the Exchange Notes
such Holder would receive would not be freely tradable, (C) such Holder is a Participating
Broker-Dealer that cannot publicly resell the Exchange Notes that it acquires in the
Registered Exchange Offer without delivering a Prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for resales following
the Consummation of the Registered Exchange Offer, or (D) the Holder is a broker-dealer and
owns Notes it has not exchanged and that it acquired directly from the Company or one of its
Affiliates, (iv) the Initial Purchaser so requests with respect to Notes that are not eligible
to be exchanged for Exchange Notes in the Registered Exchange Offer and are held by it
following Consummation of the Registered Exchange Offer, or (v) in the case where an Initial
Purchaser participates in the Registered Exchange Offer or acquires Private Exchange Notes
pursuant to Section 2(f) hereof, the Initial Purchaser does not receive freely tradable
Exchange Notes in exchange for Notes constituting any portion of an unsold allotment (it being
understood that, for purposes of this Section 3, (x) the requirement that the Initial
Purchaser deliver a Prospectus containing the information required by Items 507 and/or 508 of
Regulation S-K under the Act in connection with sales of Exchange Notes acquired in exchange
for such Transfer Restricted Notes shall result in such Exchange Notes being not “freely
tradable” and (y) the requirement that a
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Participating Broker-Dealer deliver a Prospectus in connection with sales of Exchange
Notes acquired in the Registered Exchange Offer in exchange for Transfer Restricted Notes
acquired as a result of market-making activities or other trading activities shall not result
in such Exchange Notes being not “freely tradable”) (the date on which any event specified in
clause (i) through (v) above occurs, the “Shelf Registration Event Date”), the following
provisions shall apply:
(b) The Company and the Guarantors shall use their commercially reasonable
efforts to prepare and file with the Commission, on or prior to the 30th day
following such Shelf
Registration Event Date, a Shelf Registration Statement relating to the offer and sale of
the
Notes and the Exchange Notes, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set forth in such
Shelf
Registration Statement, and shall use their commercially reasonable efforts to cause the
Shelf
Registration Statement to be declared effective by the Commission within 90 days after
filing the
Shelf Registration Statement with the Commission. With respect to Exchange Notes received
by
the Initial Purchaser in exchange for Notes constituting any portion of an unsold
allotment, the
Company may, if permitted by current interpretations by the Commission’s staff, file a
post-
effective amendment to the Exchange Offer Registration Statement containing the
information
required by Regulation S-K Items 507 and/or 508, as applicable, in satisfaction of its
obligations
under this paragraph (b) with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the provisions
herein
applicable to, a Shelf Registration Statement.
(c) The Company and the Guarantors shall use their commercially reasonable
efforts to keep such Shelf Registration Statement continuously effective, supplemented
and amended as required by the Act in order to permit the Prospectus forming a part thereof
to be usable by Holders until the earlier of (i) two years from the date the Shelf Registration
Statement
has been declared effective exclusive of any period during which any stop order shall be
in effect
suspending the effectiveness of the Shelf Registration Statement, and (ii) such time as
there are
no longer any Transfer Restricted Securities outstanding (the “Shelf Registration
Period”). The
Company and the Guarantors shall be deemed not to have used their commercially reasonable
efforts to keep the Shelf Registration Statement effective during the Shelf Registration
Period if
they voluntarily take any action that would result in Holders of the Notes or Exchange
Notes
covered thereby not being able to offer and sell such notes during that period, unless
such action
is (x) required by applicable law or (y) pursuant to Section 3(d) hereof and, in either
case, so
long as the Company and the Guarantors promptly thereafter comply with the requirements
of
Section 5(k) hereof, if applicable.
(d) The Company may suspend the use of the Prospectus that forms a part of
the Shelf Registration Statement for a period not to exceed 30 days in any six-month
period or an
aggregate of 45 days in any twelve-month period for valid business reasons (not including
avoidance of its obligations hereunder) to avoid premature public disclosure of a pending
corporate transaction, including pending acquisitions or divestitures of assets, mergers
and
combinations and similar events; provided that (i) the Company promptly
thereafter complies
with the requirements of Section 5(k) hereof, if applicable; (ii) the period during which
the Shelf
Registration Statement is required to be effective and usable shall be extended by the
number of
days during which such Shelf Registration Statement was not effective or usable pursuant
to the
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foregoing provisions; and (iii) the Additional Interest shall accrue on the Notes as
provided in Section 4 hereof.
4. Additional Interest.
(a) The parties hereto agree that Holders of Transfer Restricted Notes will
suffer damages if the Company and the Guarantors fail to perform their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the extent
of such
damages. Accordingly, in the event that (i) the applicable Registration Statement is not
filed
with the Commission on or prior to the date specified herein for such filing, (ii) the
applicable
Registration Statement has not been declared effective by the Commission on or prior to
the date
specified herein for such effectiveness after such obligation arises, (iii) if the
Registered
Exchange Offer is required to be Consummated hereunder, the Registered Exchange Offer has
not been Consummated by the Company within the time period set forth in the last sentence
of
Section 2(a) hereof, (iv) prior to the end of the Exchange Offer Registration Period or
the Shelf
Registration Period, the Commission shall have issued a stop order suspending the
effectiveness
of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the
case
may be, or proceedings have been initiated with respect to the Registration Statement
under
Section 8(d) or 8(e) of the Act, or (v) the Prospectus forming a part of a Registration
Statement
ceases to be useable in connection with resales of the Transfer Restricted Notes covered
by such
Registration Statement prior to the end of the Exchange Offer Registration Period or the
Shelf
Registration Period (whether or not as a result of the initiation of a suspension period
pursuant to
Section 3(d) hereof) (each such event referred to in clauses (i) through (v), a
“Registration
Default”), then additional interest with respect to the Transfer Restricted Notes
(“Additional
Interest”) will accrue with respect to the first 90-day period immediately following the
occurrence of such Registration Default in an amount equal to 0.25% per annum per $1,000
principal amount of such Notes and will increase by an additional 0.25% per annum per
$1,000
principal amount of such Notes for each subsequent 90-day period until such Registration
Default has been cured, up to an aggregate maximum amount of Additional Interest of 1.0%
per
annum per $1,000 principal amount of Notes for all Registration Defaults. Following the
cure of
a Registration Default, the accrual of Additional Interest with respect to such
Registration
Default will cease with respect to that Registration Default.
(b) The Company shall notify the Trustee and paying agent under the
Indenture (or the trustee and paying agent under such other indenture under which any
Transfer
Restricted Notes are issued) immediately upon the happening of each and every
Registration
Default. The Company shall pay the Additional Interest due on the Transfer Restricted
Notes by
depositing with the paying agent (which shall not be the Company for these purposes) for
the
Transfer Restricted Notes, in trust, for the benefit of the Holders thereof, prior to
11:00 a.m. on
the next interest payment date specified in the Indenture (or such other indenture), sums
sufficient to pay the Additional Interest then due. The Additional Interest due shall be
payable
on each interest payment date specified by the Indenture (or such other indenture) to the
record
holders entitled to receive the interest payment to be made on such date. Each obligation
to pay
Additional Interest shall be deemed to accrue from and include the date of the applicable
Registration Default to, but excluding, the relevant interest payment date.
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(c) All of the Company’s and the Guarantors’ obligations set forth in this Section
4 which are outstanding with respect to any Transfer Restricted Note at the time such Note
ceases to be covered by an effective Registration Statement shall survive until such time as
all such obligations with respect to such Transfer Restricted Note have been satisfied in full
(notwithstanding termination of this Agreement).
5. Registration Procedures. In connection with any Exchange
Offer Registration Statement and, to the extent applicable, any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to the Initial Purchaser, not less than 5
Business Days prior to the filing thereof with the Commission, a copy of any
Registration
Statement, and, as soon as reasonably practicable prior to filing, a copy of each
amendment thereof and each amendment or supplement, if any, to the Prospectus
included therein (including all documents incorporated by reference therein) and
shall use
their commercially reasonable efforts to reflect in each such document, when so
filed
with the Commission, such comments as the Initial Purchaser may propose.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto complies in
all material respects with the Act;
(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, 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; and
(iii) any Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, does not include an
untrue statement of a material fact or omit 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.
(c) (1) The Company shall advise the Initial Purchaser and, in the case of
a Shelf Registration Statement, the Holders of Transfer Restricted Notes covered
thereby, and, if requested by the Initial Purchaser or any such Holder, confirm such advice
in writing:
(i) when a Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus included therein or for additional
information.
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(2) The Company shall advise the Initial Purchaser and, in the case of a Shelf
Registration Statement, the Holders of Transfer Restricted Notes covered thereby, and, in the
case of an Exchange Offer Registration Statement, any Participating Broker-Dealer that has
provided in writing to the Company a telephone or facsimile number or address for notices,
and, if requested by the Initial Purchaser or any such Holder or Participating Broker-Dealer,
confirm such advice in writing:
(i) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose;
(ii) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Transfer Restricted Notes included in any
Registration Statement for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iii) of the happening of any event that requires the making of any changes
in the Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material fact required
to be stated therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(d) The Company and the Guarantors shall use their commercially reasonable
efforts to file any amendments or supplements to a Registration Statement or Prospectus
requested by the Commission and obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement or the qualification of the Transfer
Restricted
Notes covered thereby for sale in any jurisdiction, in each case at the earliest possible
time.
(e) The Company shall furnish to each Holder of Transfer Restricted Notes
included in any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference therein and,
if the Holder so requests in writing, all exhibits thereto (including those incorporated
by reference).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder
of Transfer Restricted Notes included in any Shelf Registration Statement, without charge, as
many copies of the Prospectus (including any preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use of the Prospectus (including any preliminary
prospectus) or any amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Notes in connection with the offering and sale of the Transfer Restricted Notes
covered by the Prospectus or any amendment or supplement thereto.
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(g) The Company shall furnish to each Participating Broker-Dealer that so requests,
without charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules, any documents
incorporated by reference therein and, if the Participating Broker-Dealer so requests in
writing, all exhibits thereto (including those incorporated by reference).
(h) The Company shall, during the Exchange Offer Registration Period and pursuant
to the requirements of the Act for the resale of the Exchange Notes during the period in which
a prospectus is required to be delivered under the Act (including any Commission no-action
letters relating to the Registered Exchange Offer), deliver to each Participating
Broker-Dealer, without charge, as many copies of the Prospectus (including any preliminary
Prospectus) included in such Exchange Offer Registration Statement and any amendment or
supplement thereto as such Participating Broker-Dealer may reasonably request; and the Company
and the Guarantors consent to the use of the Prospectus (including any preliminary prospectus)
or any amendment or supplement thereto by any such Participating Broker-Dealer in connection
with the offering and sale of the Exchange Notes, as provided in Section 2(e) above.
(i) Prior to the Registered Exchange Offer or any other offering of Transfer
Restricted Notes pursuant to any Registration Statement, the Company and the Guarantors shall
use their commercially reasonable efforts to register, qualify or cooperate with the Holders
of Transfer Restricted Notes included therein and their respective counsel in connection with
the registration or qualification of such Transfer Restricted Notes for offer and sale under
the securities or blue sky laws of such states as any such Holders reasonably request in
writing and do any and all other commercially reasonable acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Transfer Restricted Notes covered by
such Registration Statement.
(j) The Company shall cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted Notes to be sold
pursuant to any Registration Statement free of any restrictive legends and in denominations
authorized by the indenture and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by Section 3(d) or paragraph
(c)(2)(iii) of this Section 5, the Company and the Guarantors shall promptly prepare and file
a post-effective amendment to any Registration Statement or an amendment or supplement to the
related Prospectus or any other required document so that, as thereafter delivered to
purchasers of the Transfer Restricted Notes included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not
misleading.
(l) The Company shall take such actions as the Initial Purchaser may reasonably
request to provide a new CUSIP (if not already obtained) number for Transfer Restricted Notes
and Exchange Notes registered under a Registration Statement, to cause such CUSIP number to be
assigned to such Transfer Restricted Notes or Exchange Notes
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(or to the maximum aggregate principal amount of the securities to which such number may
be assigned) and to cause The Depository Trust Company (“DTC”) to remove any stop or
restriction on DTC’s system with respect to such Transfer Restricted Notes or Exchange Notes,
as the case may be.
(m) The Company shall use its best efforts to comply with all applicable rules and
regulations of the Commission and shall make generally available to the security holders as
soon as practicable after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the Act and Rule 158
promulgated thereunder.
(n) The Company shall cause the Indenture to be qualified under the Trust Indenture
Act in a timely manner.
(o) The Company may require each Holder of Transfer Restricted Notes to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Transfer Restricted Notes as may, from time
to time, be required by the Act, and the obligations of the Company to any Holder hereunder
shall be expressly conditioned on the compliance of such Holder with such request.
(p) The Company shall, if requested, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration Statement (i) such information
as the Majority Holders provide or, if the Transfer Restricted Notes are being sold in an
underwritten offering, as the Managing Underwriters and the Majority Holders reasonably agree
should be included therein and, in either case, provided to the Company in writing for
inclusion in the Shelf Registration Statement, or Prospectus, and (ii) such information as a
Holder may provide from time to time to the Company in writing for inclusion in a Prospectus
or any Shelf Registration Statement, in the case of clause (i) or (ii) above, concerning such
Holder and/or underwriter and the distribution of such Holder’s Transfer Restricted Notes and,
in either case, shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after being notified in writing of the matters
to be incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company and the Guarantors
shall enter into such agreements (including underwriting agreements) and take all other
customary and appropriate actions as may be reasonably requested in order to expedite or
facilitate the registration or the disposition of any Transfer Restricted Notes, and in
connection therewith, if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth in Section 8
(or such other provisions and procedures reasonably acceptable to the Majority Holders and the
Managing Underwriters, if any, with respect to all parties to be indemnified pursuant to
Section 8).
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(r) In the case of any Shelf Registration Statement, and if requested by the
Initial Purchaser in connection with resales of Transfer Restricted Notes under the Exchange
Offer Registration Statement, the Company shall:
(i) make reasonably available for inspection by the Holders of Transfer
Restricted Notes to be registered thereunder, any Managing Underwriter participating in
any disposition pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such Managing Underwriter, all
relevant financial and other records, pertinent corporate documents and properties of
the Company and any of its subsidiaries;
(ii) cause the Company’s officers, directors and employees to supply all
relevant information reasonably requested by the Holders or any such Managing
Underwriter, attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by the Company in
good faith as confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such Managing Underwriter, attorney, accountant or
agent, unless (x) disclosure thereof is made in connection with a court proceeding or
required by law; provided that each Holder and any such Managing Underwriter,
attorney, accountant or agent will, upon learning that disclosure of such information
is sought in a court proceeding or required by law, give notice to the Company to allow
the Company to undertake appropriate action to prevent disclosure at the Company’s sole
expense, or (y) such information has previously been made or becomes available to the
public generally through the Company or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations, warranties and covenants to the Holders of
Transfer Restricted Notes registered thereunder and the Managing Underwriters, if any,
in form, substance and scope as are customarily made in comparable transactions and
covering matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions, in form, scope and substance, shall be reasonably satisfactory
to the Managing Underwriters, if any) addressed to each selling Holder and the
Managing Underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and Managing Underwriters;
(v) obtain “cold comfort” letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder of the
Transfer Restricted Notes covered by such
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Shelf Registration Statement (provided such Holder furnishes the accountants with such
representations as the accountants customarily require in similar situations) and the
Managing Underwriters, if any, in customary form and covering matters of the type
customarily covered in “cold comfort” letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be reasonably requested
by the Majority Holders and the Managing Underwriters, if any, including those to
evidence compliance with Section 5(i) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company or a
Guarantor.
The foregoing actions set forth in this Section 5(r) shall be performed at (i) the
effectiveness of such Shelf Registration Statement and each post-effective amendment thereto
and (ii) each closing under any underwriting or similar agreement as and to the extent
required thereunder.
(s) If a Registered Exchange Offer is to be Consummated, upon delivery of the
Notes by Holders to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes, the Company shall xxxx, or caused to be marked, on the Notes
so exchanged that such Notes are being canceled in exchange for the Exchange Notes. In no
event shall the Notes be marked as paid or otherwise satisfied.
(t) The Company shall use its commercially reasonable efforts to confirm that the
ratings applicable to the Transfer Restricted Notes will apply to the Notes covered by a
Registration Statement.
(u) In the event that any broker-dealer shall underwrite any Notes or Exchange
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.) thereof, whether as a Holder of such Notes
or Exchange Notes or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company and the Guarantors shall assist such broker-dealer
in complying with the requirements of such Rules and By-Laws, including, without limitation,
by:
(i) if such Rules or By-Laws shall so require, engaging a “qualified
independent underwriter” (as defined in such Rules) to participate in the preparation
of the Registration Statement, to exercise usual standards of due diligence with
respect thereto and, if any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Notes or Exchange Notes;
(ii) indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 8 hereof; and
(iii) providing such information to such broker-dealer as may be required
in order for such broker-dealer to comply with the requirements of such Rules.
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(v) The Company and the Guarantors shall use their commercially reasonable
efforts to take all other steps necessary to effect the registration of the Notes or
the Exchange Notes, as the case may be, covered by a Registration Statement as
contemplated by, and in accordance with the terms of, this Agreement.
(w) In the case of a Shelf Registration Statement, each Holder of Notes or
Exchange Notes, as applicable, to be registered pursuant thereto agrees by acquisition
of such Notes or Exchange Notes, as the case may be, that, upon the occurrence of any
event contemplated by subsections (c)(2)(iii) above during the period for which the
Company is required to maintain the effectiveness of the Shelf Registration Statement,
such Holder will, upon written notice thereof from the Company, discontinue disposition
of such Notes or Exchange Notes, as applicable, under such Shelf Registration Statement
until such Holder’s receipt of copies of the supplemented or amended Prospectus
contemplated in subsection (k) above, or until advised in writing by the Company that
the use of the applicable Prospectus may be resumed.
6. Registration Expenses. The Company shall bear all Registration Expenses
(including the reasonable fees and expenses, if any, of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel
for the Initial Purchaser, incurred in connection with the Registered Exchange Offer) incurred
in connection with the performance of their obligations under Sections 2, 3, 4 and 5 hereof.
7. Rules 144 and 144A. The Company and the Guarantors shall use their
commercially reasonable efforts to file the reports required to be filed by them under the Act
and the Exchange Act in a timely manner and, if at any time the Company is not required to
file such reports, it will, upon the request of any Holder of Transfer Restricted Notes, make
publicly available other information so long as necessary to permit sales of their securities
pursuant to Rules 144 and 144A (or any successor rule adopted by the Commission). The Company
and the Guarantors each covenant that it will take such further action as any Holder of
Transfer Restricted Notes may reasonably request, all to the extent required from time to time
to enable such Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4) if applicable). The Company will provide a copy
of this Agreement to prospective purchasers of Transfer Restricted Notes identified to the
Company by the Initial Purchaser upon request. Upon the request of any Holder of Transfer
Restricted Notes, the Company shall deliver to such Holder a written statement as to whether
it has complied with such requirements. Notwithstanding the foregoing, nothing in this Section
7 shall be deemed to require the Company or a Guarantor to register any of its securities
pursuant to the Exchange Act.
8. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the Company and
each Guarantor, jointly and severally, agree to indemnify and hold harmless each Holder
of Transfer Restricted Notes covered thereby, the directors, officers and employees of
each such Holder and each person who controls any such Holder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which they or such controlling person may
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become subject, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (x) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement as originally filed or in any
amendment thereof, in any preliminary Prospectus or Prospectus or in any amendment thereof or
supplement thereto, or (y) 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
will reimburse, as incurred, each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating, defending against or appearing
as a third party witness in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company and the Guarantors will not be liable in
any such case to the extent that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information relating to the
Holder furnished to the Company by any such Holder specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may otherwise have.
(ii) The Company and each Guarantor, jointly and severally,
also agree to indemnify
or contribute to Losses, as provided in Section 8(d), of each underwriter of Transfer
Restricted Notes registered under a Registration Statement, their officers and directors and
each person who controls such underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act on substantially the same basis as that of the indemnification
of the selling Holders provided in this Section 8(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in Section 5(q)
hereof.
(b) Each Holder of Transfer Restricted Notes covered by a Registration Statement
severally agrees to indemnify and hold harmless the Company and the Guarantors and their
respective directors, officers, employees and agents and each person, if any, who controls the
Company or the Guarantors within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities, joint or several, to which
they or such controlling persons become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the Registration
Statement as originally filed or in any amendment thereof, in any preliminary Prospectus or
Prospectus or in any amendment thereof or supplement thereto, or (ii) 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 will reimburse, as incurred, each such indemnified
party for any legal or other expenses reasonably incurred by them in connection with
investigating, defending against, or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action but only if and 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 relating to such Holder furnished to the
Company by such Holder specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have.
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(c) Promptly after receipt by any person to whom indemnity may be available under
this Section 8 (the “indemnified party”) of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against any person
from whom indemnity may be sought under this Section 8 (the “indemnifying party”),
notify such indemnifying party of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses as determined by a
court of competent jurisdiction and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In case any such action is brought against any
indemnified party, and such indemnified party notifies the relevant indemnifying party of the
commencement thereof, such indemnifying party will be entitled to participate therein and, to
the extent that it may wish, to assume the defense thereof, jointly with any other
indemnifying party similarly notified, with counsel satisfactory to such indemnified party;
provided, however, that if the named parties in any such action (including
impleaded parties) include both the indemnified party and the indemnifying party and the
indemnified party shall have concluded, based on advice of outside counsel, that
representation of both parties by the same counsel would be inappropriate because of the
presence of a conflict of interest, the indemnifying party shall not have the right to direct
the defense of such action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from an indemnifying party to an
indemnified party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, such indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such indemnified party
in connection with the defense thereof, unless (i) such indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding sentence or (ii)
such indemnifying party does not promptly retain counsel satisfactory to such indemnified
party or (iii) such indemnifying party has authorized the employment of counsel for such
indemnified party at the expense of the indemnifying party. After such notice from an
indemnifying party to an indemnified party, such indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified party without
the written consent of such indemnifying party. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by (i), (ii) or (iii) of
the third sentence of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (x) such
settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (y) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. An indemnifying
party will not, without the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in
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respect of which indemnification may be sought hereunder (whether or not the indemnified party
or any other person that may be entitled to indemnification hereunder is a party to such
claim, action, suit or proceeding) unless such settlement, compromise or consent includes an
unconditional release of the indemnified party and such other persons from all liability
arising out of such claim, action, suit or proceeding.
(d) In the circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 8 is unavailable or insufficient, for any reason, to hold
harmless an indemnified party in respect of any, losses, claims, damages or liabilities
(including, without limitation, legal or other expenses incurred in connection with
investigating or defending any action or claim) (or actions in respect thereof) (collectively
“Losses”) then each indemnifying party, in order to provide for just and equitable
contribution, agrees to contribute to the amount paid or payable by such indemnified party as
a result of such Losses to which such indemnified party may be subject (i) in such proportion
as is appropriate to reflect the relative benefits received by such indemnifying party, on the
one hand, and such indemnified party, on the other hand, from the original issuance sale of
the Notes under the Purchase Agreement and the Registration Statement which resulted in such
Losses, or (ii) if the allocation provided by the foregoing clause (i) is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the relative fault of
such indemnifying party, on the one hand, and such indemnified party, on the other hand, in
connection with the statements or omissions which resulted in such Losses and any other
relevant equitable considerations appropriate in the circumstances. The relative fault of the
parties shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Guarantors, on the one hand, or
such Holder or such other indemnified person, as the case may be, on the other hand, and the
parties’ intent, relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other relevant equitable considerations
appropriate in the circumstances. Benefits received by the Company shall be deemed to be equal
to the sum of (x) the total net proceeds from the original issuance and sale of the Notes
(before deducting expenses) as set forth in the Final Memorandum, and (y) the total amount of
Additional Interest which the Company was not required to pay as a result of registering the
Transfer Restricted Notes covered by the Registration Statement which resulted in such Losses.
Benefits received by any Holder (other than the Initial Purchaser) shall be deemed to be equal
to the value of receiving Transfer Restricted Notes registered under the Act. Benefits
received by the Initial Purchaser shall be deemed to be equal to the total purchase discounts
and commissions as set forth in the Purchase Agreement. Benefits received by any underwriter
shall be deemed to be equal to its relative share of the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of the
Registration Statement which resulted in such Losses. Notwithstanding any other provision of
this Section 8(d), the Holders of the Transfer Restricted Notes shall in no case be required
to contribute any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Transfer Restricted Notes pursuant to a Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to pay by reason
of
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such untrue or alleged untrue statement or omission or alleged omission and in no case
shall any underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the Transfer Restricted Notes purchased by such
underwriter under the Registration Statement which resulted in such Losses. The parties
agree that it would not be just and equitable if contribution 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 that does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d),
the Initial Purchaser shall not be obligated to make contributions hereunder that in the
aggregate exceed the total underwriting discounts and commissions received by the
Initial Purchaser from the Company in connection with the purchase of the Notes, and no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if any, who
controls an indemnified party within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act and each director, officer, employee and agent of such
indemnified party shall have the same rights to contribution as such indemnified party.
(e) The provisions of this Section 8 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder, the Company, the
Guarantors or any of the directors, officers, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive the sale by a Holder of Transfer
Restricted Notes covered by a Registration Statement.
9. Underwritten Registrations.
If any of the Transfer Restricted Notes covered by any Shelf Registration Statement are
to be sold in an underwritten offering, the Managing Underwriter that will administer the
offering will be selected by the Majority Holders of such Transfer Restricted Notes included
in such offering, subject to the approval of the Company (which approval shall not be
unreasonably withheld or delayed), and such Holders shall be responsible for all underwriting
commissions and discounts in connection therewith.
No person may participate in any underwritten offering pursuant to a Shelf Registration
Statement unless such person (i) agrees to sell such person’s Transfer Restricted Notes on the
basis reasonably 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.
10. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor any Guarantor has,
as of the date hereof, entered into nor shall it, on or after the date hereof, enter into any
agreement that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
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(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of the Majority Holders; provided that, with
respect to any matter that directly or indirectly affects the rights of the Initial Purchaser
hereunder, the Company shall obtain the written consent of the Initial Purchaser.
Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders whose Transfer
Restricted Notes are being sold pursuant to a Shelf Registration Statement or whose Notes are
being exchanged pursuant to an Exchange Offer Registration Statement, as the case may be, and
which does not directly or indirectly affect the rights of other Holders may be given by such
Holders, determined on the basis of Notes being sold rather than registered. Notwithstanding
any of the foregoing, no amendment, modification, supplement, waiver or consents to any
departure from the provisions of Section 8 hereof shall be effective as against any Holder of
Transfer Restricted Notes unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to the Initial Purchaser, as follows:
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX 0000
Xxxxxxxxx, XX 00000-0000
Facsimile: 704-715.6099
Attention: High-Yield Debt Origination
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX 0000
Xxxxxxxxx, XX 00000-0000
Facsimile: 704-715.6099
Attention: High-Yield Debt Origination
with a copy mailed or delivered to:
Xxxxxx
Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 212-269-5420
Attention: Xxxx Xxxxxxxx, Esq.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 212-269-5420
Attention: Xxxx Xxxxxxxx, Esq.
(ii) if to any other Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 10(c), which
address initially is, with respect to each Holder, the address of such Holder
maintained by the registrar under the Indenture, with a copy in like manner to the
Initial Purchaser; and
(iii) if to the Company or the Guarantors, as follows:
Xxxxxxx Cable, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx Xxxxx
-00-
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Attention: Xxxxxxx X. Xxxxxx
with a copy mailed or delivered to:
Mayer, Brown,
Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly given when
received, if delivered by hand or air courier, and when sent, if sent by first-class mail,
telex or facsimile.
The Company by notice to the others may designate additional or different addresses for
subsequent notices or communications.
(d) 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 the need
for an express assignment or any consent by the Company or any Guarantor thereto, subsequent
Holders. The Company and the Guarantors hereby agree to extend the benefits of this Agreement
to any Holder and any such Holder may specifically enforce the provisions of this Agreement as
if an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law and Consent to Jurisdiction. This agreement shall be governed
by and construed in accordance with the laws of the State of New York. The Company and each
Guarantor (x) submits to the nonexclusive jurisdiction of the courts of the State of New York
and of the United States sitting in the Borough of Manhattan in respect of any action, claim
or proceeding (“Proceeding”) arising out of or relating to this Agreement or the
transactions contemplated hereby, (y) irrevocably waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying of venue of any
Proceeding in the Supreme Court of the State of New York, County of New York, or the United
States District Court for the Southern District of New York, and any claim that any Proceeding
in any such court has been brought in an inconvenient forum, and (z) agrees that any service
of process or other legal summons in connection with any Proceeding may be served on it by
mailing a copy thereof by registered mail, or a form of mail substantially equivalent thereto,
postage prepaid, addressed to the served party at its address as provided for in Section
10(c). Nothing in this section shall affect the right of the parties to serve process in any
other manner permitted by law.
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(h) Obligations of New Guarantors. If any person becomes a Guarantor
(as defined in the Indenture) after the date hereof and while the Company has continuing
obligations under this Agreement, the Company will cause such Guarantor to become a party
hereto including for purposes of registration obligations, the guarantee of Additional
Interest on a joint and several basis and indemnification and contribution pursuant to Section
8.
(i) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions hereof shall not
be in any way impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted by law.
(j) Notes Held by the Company, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Transfer Restricted Notes or Exchange
Notes is required hereunder, Transfer Restricted Notes or Exchange Notes held by the Company
or any of its Affiliates (other than subsequent Holders of Transfer Restricted Notes or
Exchange Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Remedies. In the event of a breach by either the Company or any of the
Guarantors of any of their respective obligations under this Agreement, each Holder, in
addition to being entitled to exercise all rights provided herein, in the Indenture or, in the
case of the Initial Purchaser, in the Purchase Agreement, or granted by law, including
recovery of damages, will be entitled to specific performance of its rights under this
Agreement. The Company and the Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by either the Company or any of the
Guarantors of any of the provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such breach, the Company shall (and
shall cause each Guarantor to) waive the defense that a remedy at law would be adequate.
[Intentionally left blank]
-23-
Please confirm that the foregoing correctly sets forth the agreement between and between
the Company and the Initial Purchaser.
| Very truly yours, XXXXXXX CABLE, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | EVP/CFO | |||
| GUARANTORS: CCI ENTERPRISES, INC. CCI INTERNATIONAL, INC. XXXXXXXXXXX, LLC OSWEGO WIRE INCORPORATED SPELL CAPITAL CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | VP/Secretary | |||
Registration Rights Agreement Signature Page
| The foregoing Agreement is hereby confirmed and accepted as of the date first above written. | ||||||
| WACHOVIA CAPITAL MARKETS, LLC | ||||||
| By: | /s/ W. A. Luther | |||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Managing Director | |||||
Registration Rights Agreement Signature Page
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to the Registered
Exchange Offer must acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Notes. The Letter of Transmittal states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an
“underwriter” within the meaning of the Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer during the Exchange Offer
Registration Period in connection with resales of Exchange Notes received in exchange for
Notes where such Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, during the Exchange Offer
Registration Period, it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See “Plan of Distribution.”
A-1
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange for Notes,
where such Notes were acquired by such broker-dealer as a result of market-making activities
or other trading activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes during the Exchange Offer Registration Period. See
“Plan of Distribution.”
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account pursuant to the
Registered Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes during the Exchange Offer Registration Period. This
Prospectus, as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Notes received in exchange for Notes
where such Notes were acquired as a result of market-making activities or other trading
activities. The Company has agreed that, during the Exchange Offer Registration Period, it
will make this Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with
any such resale. In addition, until 2008, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange Notes by
broker-dealers. Exchange Notes received by broker-dealers for their own account pursuant to
the Registered Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the
Exchange Notes or a combination of such methods of resale, at market prices prevailing at the
time of resale, at prices related to such prevailing market prices or negotiated prices. Any
such resale may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such broker-dealer
and/or the purchasers of any such Exchange Notes. Any broker-dealer that resells Exchange
Notes that were received by it for its own account pursuant to the Registered Exchange Offer
and any broker or dealer that participates in a distribution of such Exchange Notes may be
deemed to be an “underwriter” within the meaning of the Act and any profit from any such
resale of Exchange Notes and any commissions or concessions received by any such persons may
be deemed to be underwriting compensation under the Act. The Letter of Transmittal states that
by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not
be deemed to admit that it is an “underwriter” within the meaning of the Act.
During the Exchange Offer Registration Period, the Company will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The Company has
agreed to pay all expenses incident to the Registered Exchange Offer (including the expenses
of one counsel for the holders of the Notes) other than dealers’ and brokers’ discounts,
commissions and counsel fees and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507 and/or 508.]
C-1
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
| Name: | ||||||
| Address: | ||||||
The undersigned represents that it is not an Affiliate of the Company, that any Exchange
Notes to be received by it will be acquired in the ordinary course of business and that at the
time of the commencement of the Registered Exchange Offer it had no arrangement with any
person to participate in a distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the undersigned represents that
it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes. If
the undersigned is a broker-dealer that will receive Exchange Notes for its own account in
exchange for Notes, it represents that the Notes to be exchanged for Exchange Notes were
acquired by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an “underwriter” within the meaning of the Act.
D-1
