EXECUTION COPY
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XXXX MEDIA CORPORATION
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$100,000,000
10 1/2% SERIES A SENIOR SUBORDINATED NOTES DUE 2007
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 19, 1996
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XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 19, 1996, by and among Xxxx Media Corporation, a
Delaware corporation (the "Company"), as issuer, Xxxx Communications, Inc., a
Delaware corporation, Xxxx Millennium Marketing Inc., a Delaware corporation,
Banner Radio Sales, Inc., a Delaware corporation, Xxxxxxxx Radio Sales, Inc., a
Delaware corporation, Xxxxxxx Radio Sales, Inc., a Delaware corporation, Seltel
Inc., a Delaware corporation, Xxxx Cable Corporation, a Delaware corporation
and The National Payroll Company, Inc., a Delaware corporation, as guarantors
(each a "Guarantor" and, collectively, the "Guarantors"), and Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation (the "Initial Purchaser"), which has agreed
to purchase the Company's 10 1/2% Series A Senior Subordinated Notes due 2007
(the "Series A Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 13, 1996 (the "Purchase Agreement"), by and among the Company, the
Guarantors and the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Series A 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 Purchaser set
forth in Section 9(i) of the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day in The
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Broker-Dealer Transfer Restricted Notes: Series B Notes that are
acquired by a Broker-Dealer in the Exchange Offer in exchange for Series A
Notes that such Broker-Dealer acquired for its own account as a result of
market-making activities or other trading activities (other than Series A Notes
acquired directly from the Company or any of its affiliates).
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) 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 (c) the delivery by the
Company to the Registrar under the Indenture of Series
B Notes in the same aggregate principal amount as the aggregate principal
amount of Series A Notes tendered by Holders thereof pursuant to the Exchange
Offer.
Damages Payment Date: With respect to the Series A Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of the
Series B Notes pursuant to the Exchange Offer Registration Statement pursuant
to which the Company offers the Holders of all outstanding Transfer Restricted
Notes the opportunity to exchange all such outstanding Transfer Restricted
Notes held by such Holder for Series B Notes in an aggregate principal amount
equal to the aggregate principal amount of the Transfer Restricted Notes
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 Purchaser
proposes to sell the Series A Notes to (i) certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, (ii) certain
institutional "accredited investors," as such term is defined in Rule
501(a)(1), (2), (3), and (7) of Regulation D under the Act and (iii) to
non-U.S. persons outside the United States in reliance upon Regulation S under
the Act.
Guarantors: The Guarantors defined in the preamble hereto and any
Person which becomes a guarantor after the date hereof pursuant to the
terms of the Indenture.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of the Closing Date, among the
Company, the Guarantors and American Stock Transfer & Trust Company, as trustee
(the "Trustee"), pursuant to which the Notes are issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, trust,
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, 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 Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Notes pursuant to the
Shelf Registration Statement, in each case, (i) which is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-
Dealer Transfer Restricted Notes.
Series B Notes: The Company's 10 1/2% Series B Senior Subordinated
Notes due 2007 to be issued pursuant to the Indenture (i) in the Exchange Offer
or (ii) upon the request of any Holder of Series A Notes covered by a Shelf
Registration Statement, in exchange for such Series A Notes.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Notes: Each Series A Note, until the earliest to
occur of (a) the date on which such 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 Act, (b) the date on which
such Note has been effectively registered under the Act and disposed of in
accordance with a Shelf Registration Statement, (c) the date on which such Note
is disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery
of the Prospectus contained therein) or (d) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) The securities entitled to the benefits of this Agreement are
the Transfer Restricted Notes.
(b) A Person is deemed to be a holder of Transfer Restricted Notes
(each, a "Holder") whenever such Person owns Transfer Restricted Notes.
3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable law
or Commission policy (after the procedures set forth in Section 6(a)(i) 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 45 days after the Closing Date,
the Exchange Offer Registration Statement, (ii) use their reasonable best
efforts to cause such Exchange Offer 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, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may
be necessary in order to cause such Exchange Offer Registration Statement to
become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration
and qualification of the Series B Notes to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer (provided, however, that the Company shall not be obligated to file in
any jurisdiction in which it is not so qualified or take any action which would
subject it to general service of process or taxation in any jurisdiction where
it is not so subject), and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration of the
Series B Notes to be offered in exchange for Transfer Restricted Notes and to
permit sales of Broker-Dealer Transfer Restricted Notes by Restricted
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their reasonable best
efforts to 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 Business Days. 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 reasonable 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 45 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Transfer Restricted Notes
and that were acquired for the account of such Broker- Dealer as a result of
market-making activities or other trading activities, may exchange such
Transfer Restricted Notes (other than Transfer Restricted Notes acquired
directly from the Company) pursuant to the Exchange Offer; provided, however,
such Broker-Dealer may be deemed to be an "underwriter" within the meaning of
the Act and must, therefore, deliver a prospectus meeting the requirements of
the Act in connection with its initial sale of each Series B Note 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 sales of Broker-Dealer Transfer Restricted Notes by Restricted
Broker-Dealers that the Commission may require in order to permit such sales
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.
(d) 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 sales of Broker-Dealer
Transfer Restricted Notes by Restricted Broker-Dealers, and to ensure that such
Registration Statement conforms with the requirements of this Agreement, the
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period of one year from the date on which the Exchange
Offer is Consummated.
(e) The Company shall promptly provide a reasonable number of copies
of the latest version of such Prospectus included in the Exchange Offer
Registration Statement to such Restricted Broker-Dealers upon request, and in
no event later than two days after such request, at any time during such
one-year period in order to facilitate such sales.
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement or to Consummate the Exchange Offer with
respect to the Series B Notes because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section
6(a)(i) below have been complied with) or (ii) if any Holder of Transfer
Restricted Notes shall notify the Company within 20 Business Days following the
Consummation of the Exchange Offer 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 Series B Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and 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 Series A Notes acquired directly from the Company or one of its
affiliates, then the Company and the Guarantors shall (x) cause to be filed on
or prior to the earliest of (1) 45 days after the date on which the Company
determines that it is not required to file the Exchange Offer Registration
Statement pursuant to clause (i) above, (2) 45 days after the date on which the
Company receives the notice specified in clause (ii) above and (3) 120 days
after the Closing Date, a shelf registration statement pursuant to Rule 415
under the Act (which may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration Statement")), relating to
all Transfer Restricted Notes the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof, and (y) use their
reasonable best efforts to cause such Shelf Registration Statement to become
effective on or prior to 120 days after the date on which the Company becomes
obligated to file such Shelf Registration Statement. If, after the Company has
filed an Exchange Offer Registration Statement which satisfies the requirements
of Section 3(a) above, the Company is required to file and make effective a
Shelf Registration Statement solely because the Exchange Offer shall not be
permitted under applicable law or Commission policy, then the filing of the
Exchange Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above. Such an event shall have no effect on the
requirements of clause (y) above, or on the Effectiveness Target Date as
defined in Section 5
below. The Company and the Guarantors shall use their reasonable best efforts
to keep the Shelf Registration Statement discussed in this Section 4(a)
continuously effective, supplemented and amended as required by and subject to
the provisions of Sections 6(b) and (c) hereof to the extent necessary to
ensure that it is available for sales of Transfer Restricted Notes by the
Holders thereof entitled to the benefit of this Section 4(a), and to ensure
that it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of at least three years (as extended pursuant to Section
6(c)(i)) following the date on which such Shelf Registration Statement first
becomes effective under the Act or such shorter period that will terminate when
all of the Transfer Restricted Notes covered by such Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Notes may
include any of its Transfer Restricted Notes 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. No Holder of Transfer Restricted Notes shall be
entitled to liquidated damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. 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.
5. LIQUIDATED DAMAGES
If (i) any Registration Statement 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 such Registration Statement 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 45 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 immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared immediately effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then the Company and
the Guarantors hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Notes so affected, for the first 90-day period immediately
following the occurrence of such Registration Default, liquidated damages in an
amount equal to $.05 per week per $1,000 principal amount of Transfer
Restricted Notes held by such Holder for so long as the Registration Default
continues. The amount of liquidated damages payable to each Holder shall
increase by an additional $.05 per week per $1,000 principal amount of Transfer
Restricted Notes held by such Holder for each subsequent 90-day period up to a
maximum of $.40 per week per $1,000 principal amount of Transfer Restricted
Notes held by
such Holder. A Registration Default shall cease, and any further liquidated
damages with respect to such Registration Default shall cease to accrue, (1)
upon the filing of the applicable Registration Statement, in the case of clause
(i) above, (2) upon the effectiveness of the applicable Registration Statement,
in the case of clause (ii) above, (3) upon the Consummation of the Exchange
Offer, in the case of clause (iii) above, and (4) when the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
becomes effective or usable, in the case of clause (iv) above. Notwithstanding
the foregoing to the contrary, the amount of liquidated damages payable shall
not increase because more than one Registration Default has occurred and is
pending.
All accrued liquidated damages shall be paid by the Company to Holders
of record in the same manner in which payments of interest are made pursuant to
the Indenture. All obligations of the Company and the Guarantors set forth in
the preceding paragraph that are outstanding with respect to any Transfer
Restricted Note at the time such security ceases to be a Transfer Restricted
Note shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
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 reasonable best efforts to
effect such exchange and to permit the sale of Broker-Dealer Transfer
Restricted Notes being sold in accordance with the intended method or methods
of distribution thereof and shall comply with all of the following provisions:
(i) If, following the date hereof, there has been published a
change in Commission policy with respect to exchange offers such as
the Exchange Offer, such that in the reasonable opinion of counsel to
the Company there is a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company and the
Guarantors hereby agree to seek oral interpretive advice or other
favorable decision, including a no-action letter, from the Commission
allowing the Company and the Guarantors to Consummate an Exchange
Offer for such Series A Notes. The Company and the Guarantors hereby
agree to pursue the issuance of such a decision to the Commission
staff level. In connection with the foregoing, the Company and the
Guarantors hereby agree to take all such other actions as are
requested by the Commission or otherwise required in connection with
the issuance of such decision, including without limitation (A)
participating in telephonic conferences with the Commission staff, (B)
delivering to the Commission staff an analysis prepared by counsel to
the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursuing a resolution (which need not be favorable)
by the Commission staff of such submission; provided, however, that
the Company shall not be required to take commercially unreasonable
action in connection with the foregoing.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Notes shall furnish, upon the request of the Company, prior
to the Consummation of the Exchange Offer, 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 (or that if it
is such an affiliate, it will comply with the registration and
prospectus delivery requirements of the Act to the extent applicable),
(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 Series B Notes to be issued in the Exchange Offer
and (C) it is acquiring the Series B Notes in its ordinary course of
business. 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 Xxxxxxxx & Sterling dated
July 2, 1993, and similar no-action letters (including, if applicable,
any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements
of the Act in connection with a secondary resale transaction and that
such a secondary resale transaction must 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 Series B Notes obtained by such Holder in
exchange for Series A Notes acquired by such Holder directly from the
Company or an affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall provide a
supplemental letter to the Commission (A) stating that the Company and
the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a representation
that neither the Company nor any Guarantor has entered into any
arrangement or understanding with any Person to distribute the Series
B Notes to be received in the Exchange Offer and that, to the best of
the Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary course
of business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Notes received in the
Exchange Offer and (C) including any other undertaking or
representation reasonably required by the Commission as set forth in
any no-action letter obtained pursuant to clause (i) above.
(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 Notes
being sold in accordance with the intended method or methods of distribution
thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Notes in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
and any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Notes (including, without limitation, any
Exchange Offer Registration Statement and the related Prospectus, to the extent
that the same are required to be available to permit sales of Broker-Dealer
Transfer Restricted Notes by Restricted Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements (including, if required by the 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
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 Notes during the period
required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, (1) in the case
of clause (A), correcting any such misstatement or omission, and (2)
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; provided
that the Company shall be entitled to cause the Initial Purchaser or
any Holder not to make sales pursuant to the Shelf Registration
Statement for a period of up to 60 days in any calendar year if the
Company determines in good faith that such registration would
interfere with any announced or imminent material financing,
acquisition, disposition, corporate reorganization or other material
transaction of a similar type involving the Company or would require
the disclosure of information that is not in the best interests of the
Company to disclose.
(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 period
set forth in Section 3 or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted Notes 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 Act, and to
comply fully with Rules 424 and 430A, as applicable, under the Act in
a timely manner; and comply with the provisions of the 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, 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
Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Notes 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 in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the
light of the circumstances under which they were made, 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 Notes under state securities or Blue Sky laws,
the Company and the Guarantors shall use their reasonable best efforts
to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) to the extent reasonably practicable, furnish to the
Initial Purchaser, each selling Holder named in any Registration
Statement or Prospectus and the underwriter(s) in connection with such
sale, if any, 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, upon request, all documents incorporated by
reference after the initial filing of such Registration Statement),
which documents will be subject to the review and comment of such
Holders and underwriter(s) in connection with such sale, if any, for a
period of at least five 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 (including
all such documents incorporated by reference) to which the selling
Holders of the Transfer Restricted Notes covered by such Registration
Statement or the underwriter(s) in connection with such sale, if any,
shall reasonably object within five Business Days after the receipt
thereof;
(v) to the extent reasonably practicable, 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 selling Holders and to the underwriter(s) in
connection with such sale, 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 the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders or any of such 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
or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness provided, however, that such
selling Holders, underwriter(s), attorneys or accountants agree to
keep confidential any records, information or documents that are
designated by the Company in writing as confidential and to use such
information obtained pursuant to this provision only in connection
with the transaction for which such information was obtained, and not
for any other purpose, unless (i) such records, information or
documents (x) are available to the public, (y) were already in such
selling Holders', underwriter(s)', attorneys' or accountants'
possession prior to its receipt from the Company and they do not
otherwise have any obligation to keep such records, information or
documents confidential or (z) are obtained by such selling Holders,
underwriter(s), attorneys or accountants, after due inquiry, is not
prohibited from transmitting the information to such selling Holders,
underwriter(s), attorneys or accountants by a contractual, legal or
fiduciary obligation to the Company or a third party, or (ii)
disclosure of such records, information or documents is required by a
court or administrative order after the exhaustion of appeals
therefrom;
(vii) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include
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, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Notes, information with respect to the principal amount of Transfer
Restricted Notes being sold to such underwriter(s), the purchase price
being paid therefor and any other terms of the offering of the
Transfer Restricted Notes 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 included in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Notes covered by the
Registration Statement to be rated with the appropriate rating
agencies, 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 the underwriter(s) in
connection with such sale, if any, without charge, at least one copy
of the Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all documents incorporated by
reference therein excluding exhibits and exhibits incorporated therein
by reference except upon request;
(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 Notes covered by the
Prospectus or any amendment or supplement thereto;
(xi) use its reasonable best efforts to enter into, and cause
the Guarantors to enter into, such agreements (including an
underwriting agreement), and make, and cause the Guarantors to make,
such representations and warranties, and take all such other actions
in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Notes pursuant to any
Registration Statement contemplated by this Agreement as may be
reasonably requested by any selling Holder of Transfer Restricted
Notes included in such registration or underwriter in connection with
any sale or resale pursuant to any Registration Statement contemplated
by this Agreement, provided, however, that the Company shall have no
liability for any compensation or reimbursement of expenses due to any
underwriter, Holder or other party assisting in the disposition of
such Transfer Restricted Notes in connection with any Shelf
Registration Statement except as set forth in section 7 hereof, and in
such connection, 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 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, and, if applicable, upon the date of the Consummation of
the Exchange Offer and, if applicable, the effectiveness of
the Shelf Registration Statement:
(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 on behalf of the Company
by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the
Company and each of the Guarantors, confirming, as
of the date thereof, the matters set forth in
paragraphs (a) through (d) of Section 9 of the
Purchase Agreement and such other similar matters as
the Holders and/or underwriter(s) 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 matters similar to those
set forth in paragraph (e) of
Section 9 of the Purchase Agreement and such other
matter as the Holders 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
and representatives of the independent public
accountants for the Company in connection with the
preparation of the applicable Registration Statement
and has considered the matters required to be stated
therein and the statements concluded therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises such
Holders, on the basis of the foregoing (relying as
to materiality to the extent such counsel deems
appropriate upon facts provided to such counsel by
officers and other representatives of the Company),
no facts have come to such counsel's attention which
led it 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 or contains an untrue
statement of a material fact or omitted or omits to
state a material fact necessary to make the
statements contained therein, in light of the
circumstances under which they were made, 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 or contains an untrue
statement of a material fact or omitted or omits to
state a material fact necessary to make the
statements contained therein, in the light of the
circumstances under which they were made, not
misleading (it being understood that such counsel
need express no view with respect to the financial
statements and related notes, pro forma financial
data, the financial statement schedules and other
financial, statistical and accounting data included
in or omitted from any Registration Statement
contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement or the date of Consummation of the
Exchange Offer, 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 to underwriters in
connection with underwritten offerings, and
affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(h) of the
Purchase Agreement, without exception;
(B) deliver such other documents and certificates as
may be reasonably requested by the selling Holders or the
underwriter(s), if any, 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 pursuant to this clause (x).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties of
the Company and the Guarantors contemplated in (A)(1) above cease to
be true and correct, the Company or the Guarantors shall so advise the
underwriter(s), if any, and selling Holders promptly and if requested
by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Notes, 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 Notes under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Notes
covered by the applicable Registration Statement; provided, however,
that neither the Company nor any Guarantor shall be required to
register or qualify as a foreign corporation where it is not now 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 now so subject;
(xiii) issue, upon the request of any Holder of Series A
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Notes, having an aggregate principal amount equal
to the aggregate principal amount of Series A Notes surrendered to the
Company by such Holder in exchange therefor or being sold by such
Holder; such Series B 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 Series A Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiv) in connection with any sale of Transfer Restricted
Notes that will result in such securities no longer being Transfer
Restricted Notes, cooperate, 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 Notes to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Notes in such
denominations and such names as the Holders or the underwriter(s), if
any, may request at least two Business Days prior to such sale of
Transfer Restricted Notes;
(xv) use its reasonable best efforts to cause the disposition
of the Transfer Restricted Notes covered by the Registration Statement
to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Notes, subject to the proviso contained in
clause (xi) above;
(xvi) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, use its reasonable best efforts to 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 Notes, 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, in the light
of the circumstances under which they were made, not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Notes not later than the effective date of a Registration Statement
covering such Transfer Restricted Notes and provide the Trustee under
the Indenture with printed certificates for the Transfer Restricted
Notes which are in a form eligible for deposit with The Depository
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 Notes to consummate the
disposition of such Transfer Restricted Notes;
(xix) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(xx) cause the Indenture to be qualified under the TIA 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 TIA; and execute, and cause the Guarantors to execute,
and use its reasonable best efforts to cause the Trustee to execute,
all documents that may be required to effect such 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; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Note that, upon receipt of the notice referred to in
Section 6(c)(i) or 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 forthwith
discontinue disposition of Transfer Restricted Notes 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 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 (the "Advice"). 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 Notes that was current at the time of receipt
of either 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)(i) or 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)(xv) hereof or shall have received the
Advice.
7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company
and the Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses (including filings made with the NASD and reasonable counsel fees
in connection therewith); (ii) all fees and expenses of compliance with federal
securities and state Blue Sky or securities laws; (iii) all printing expenses
of printing (including printing certificates for the Series B Notes and
printing of Prospectuses); (iv) all fees and disbursements of counsel for the
Company and the Guarantors and, in accordance with Section 7(b) below, the
Holders of Transfer Restricted Notes; and (v) 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). Notwithstanding anything in this Section 7 to
the contrary, the Company shall not be required to pay (a) the fees and
expenses of any underwriter or of legal counsel for any underwriter, other than
a "qualified independent underwriter" (acting solely in such capacity) as
provided in clause (i) of the preceding sentence or (b) any underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Transfer Restricted Notes.
The Company will, in any event, bear its and the Guarantors' 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.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company will reimburse the Holders of Transfer Restricted
Notes the distribution of which is being registered pursuant to the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel chosen by the Holders of a majority of the principal amount of
such Transfer Restricted Notes; provided, however, that such counsel must be
reasonably satisfactory to the Company.
8. INDEMNIFICATION
(a) The Company and each of 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 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) in such capacity may hereinafter be referred to as an
"Indemnified Person") 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 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 Person) 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 omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus, in
light of the circumstances under which they were made) 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
(i) made in reliance upon and in conformity with information relating to any of
the Holders furnished in writing to the Company by or on behalf of any of the
Holders through you expressly for use therein or (ii) made in any preliminary
Prospectus if a copy of the final Prospectus (as amended or supplemented) was
not sent or given by or on behalf of the Holder to the person asserting any
such loss, claim, damage, liability or expense prior to the written
confirmation of the sale of the Notes and the final Prospectus (as amended or
supplemented) would have corrected in all material respects such untrue
statement or omission. The Company shall notify the Holders promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company, any of its subsidiaries
or an Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Company or a
Guarantor, such Indemnified Person shall promptly notify the Company and/or
such Guarantor in writing (provided, that the failure to give such notice shall
not relieve the Company or any Guarantor of its obligations pursuant to this
Agreement) and the Company or such Guarantor shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person and payment of all reasonable fees and expenses (regardless of whether
it is ultimately determined that an Indemnified Person is not entitled to
indemnification hereunder). Such Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company
or such Guarantor, (ii) the Company or such Guarantor shall have failed to
assume the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both such Indemnified Person
and the Company, the Guarantors or any of its Subsidiaries and such Indemnified
Person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Company or any of its Subsidiaries (in which case the Company
or a Guarantor shall not have the right to assume the defense of such action on
behalf of such Indemnified Person, it being understood, however, that the
Company and the Guarantors shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all such Indemnified Persons, which firm shall be
designated in writing by the Holders and that all such reasonable fees and
expenses shall be reimbursed as they are incurred). The Company and the
Guarantors shall not be liable for any settlement of any such action or
proceeding effected without the Company's prior written consent, but if settled
with the written consent of the Company, which consent will not be unreasonably
withheld, the Company and each Guarantor agree to indemnify and hold harmless
any Indemnified Person from and against any loss, claim, damage, liability or
expense by reason of any such settlement. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested the Company
or a Guarantor to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, each of the
Company and each Guarantor agree that it shall be liable for any settlement of
any proceeding effected without the Company's written consent if (i) such
settlement is entered into more than 10 business days after receipt by the
Company of the aforesaid request, and (ii) the Company or a Guarantor shall not
have reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. The Company shall not, without the prior written
consent of each Indemnified Person, 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 Person is
a party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all liability
arising out of such action, claim, litigation or proceeding.
(c) Each Holder of Transfer Restricted Notes agrees, severally and not
jointly, to indemnify and hold harmless the Company and each Guarantor, their
directors, their officers and any controlling person (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) to the same extent as
the foregoing indemnity from the Company and each Guarantor to each of the
Indemnified Persons, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by or on behalf of
such Holder expressly for use in the Offering Documents. In case any action
shall be brought against any such Indemnified Person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Notes, such
Holder shall have the rights and duties given to the Company and the Guarantors
(except that if the Company or a Guarantor shall have assumed the defense
thereof, the Holders shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
Holders), and the Indemnified Person shall have the rights and duties given to
the Holders by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each 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 and expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other hand from the offering of the
Transfer Restricted Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party and the indemnified party, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantors on the one hand, and the indemnified
Holder, on the other hand, 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 related to
information supplied by the Company, a Guarantor or such Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The indemnity and contribution
obligations of the Company and the Guarantors set forth herein shall be in
addition to any liability or obligation the Company and the Guarantors may
otherwise have to any Indemnified Person.
The Company, the Guarantors and each Holder of Transfer Restricted
Notes agrees that it would not be just and equitable if contribution pursuant
to this Section 8(d) were determined by pro rata allocation 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 Section 8, none of the Holders (and the
Holders' related Indemnified Persons) shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the Transfer Restricted Notes purchased
by such Holder 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability which the Company and the Guarantors
may otherwise have to the Indemnified Persons.
9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Notes remain outstanding, to make available, upon
request of any Holder of Transfer Restricted Notes, to any Holder or beneficial
owner of Transfer Restricted Notes in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Notes designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Notes pursuant
to Rule 144A.
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Xxxxxx (a) agrees to sell such Xxxxxx's Transfer Restricted Notes
on the basis provided in customary underwriting arrangements entered into in
connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, lock-up letters and other documents
required under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Notes covered by a Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Notes in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Notes included in such
offering. Such investment bankers and managers must be reasonably satisfactory
to the Company and are referred to herein as the "underwriters."
12. MARKET-MAKING PROSPECTUSES
(i) Following the consummation of any Exchange Offer or the
effectiveness of a Shelf Registration Statement and for so long as the Notes
are outstanding if, in the reasonable judgment of the Initial Purchaser, the
Initial Purchaser or any of its affiliates (as such term is defined in the
rules and regulations under the Act) are required to deliver a prospectus in
connection with sales of, or market-making activities with respect to, such
securities, the Company agrees (A) to periodically amend the applicable
Registration Statement so that the information contained therein complies with
the requirements of Section 10(a) of the Act, (B) to amend the applicable
Registration Statement or supplement the related prospectus or the documents
incorporated therein when necessary to reflect any material changes in the
information provided therein so that the Registration Statement, and the
prospectus will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances existing as of the date the prospectus is so
delivered, not misleading and (C) to provide the Initial Purchasers with copies
of each such amendment or supplement as the Initial Purchasers may reasonably
request.
13. MISCELLANEOUS
(a) Remedies. Payment of liquidated damages pursuant to Section 5
hereof shall be the sole remedy available to Holders in the event the Company
and the Guarantors do not comply with the deadlines set forth herein with
respect to the conduct of the Exchange Offer or the
registration of the Series A Notes pursuant to a Shelf Registration Statement
pursuant to Section 4 hereof.
(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. Except as disclosed in the Offering Memorandum, neither the
Company nor the Guarantors have previously entered into any agreement granting
any registration rights with respect to its 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, or voluntarily permit any change to occur, 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 Notes. 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 Notes subject to such Exchange Offer.
(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 or the Guarantors:
Xxxx Media Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxx, Xxxx, Xxxxxxx, Xxxxx and Xxxx, L.L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, 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
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 Notes; 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 Notes directly 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.
(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 Notes. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
XXXX MEDIA CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
XXXX COMMUNICATIONS, INC.
XXXX MILLENNIUM MARKETING INC.
BANNER RADIO SALES, INC.
XXXXXXXX RADIO SALES, INC.
XXXXXXX RADIO SALES, INC.
SELTEL INC.
XXXX CABLE CORPORATION
THE NATIONAL PAYROLL COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxx X. Xxxxxxx
-------------------------------
Name: Xxx X. Xxxxxxx
Title: Managing Director
