UNITED SURGICAL PARTNERS INTERNATIONAL, INC. 87/8% Senior Subordinated Notes due 2017 91/4%/10% Senior Subordinated Toggle Notes due 2017 REGISTRATION RIGHTS AGREEMENT
EXHIBIT 4.3
EXECUTION COPY
UNITED SURGICAL PARTNERS INTERNATIONAL, INC.
87/8% Senior Subordinated Notes due 2017
91/4%/10% Senior Subordinated Toggle Notes due 2017
91/4%/10% Senior Subordinated Toggle Notes due 2017
April 19, 2007
Citigroup Global Markets Inc.
Xxxxxx Brothers Inc.
Xxxxxx Brothers Inc.
as Representatives of the Initial Purchasers c/o Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
United Surgical Partners International, Inc., a corporation organized under the laws of
Delaware (the “Company”), proposes to issue and sell to certain purchasers (the “Initial
Purchasers”), for whom you (the “Representatives”) are acting as representatives, its 87/8% Senior
Subordinated Notes due 2017 (the “Cash Pay Notes”) and 91/4%/10% Senior Subordinated Toggle Notes due
2017 (the “Toggle Notes” and, together with the Cash Pay Notes, the “Notes”), upon the terms set
forth in the Purchase Agreement between the Company (as successor to UNCN Acquisition Corp.) and
the Representatives dated as of April 11, 2007 (the “Purchase Agreement”) relating to the initial
placement (the “Initial Placement”) of the Securities. The Securities will be unconditionally
guaranteed (the “Guarantees” and together with the Notes, the “Securities”) by the guarantors
listed on the signature pages hereto (the “Guarantors” and, together with the Company, the
“Issuers”). To induce the Initial Purchasers to enter into the Purchase Agreement and to satisfy a
condition to your obligations thereunder, the Issuers agree with you for your benefit and the
benefit of the holders from time to time of the Securities (including the Initial Purchasers) (each
a “Holder” and, collectively, the “Holders”), 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” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
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“Affiliate” shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative thereto.
“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Cash Pay Notes” shall have the meaning set forth in the preamble hereto.
“Closing Date” shall mean the date of the first issuance of the Securities.
“Commission” shall mean the Securities and Exchange Commission.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Exchange Offer Registration Period” shall mean the period following the consummation of the
Registered Exchange Offer and ending on the earlier of (i) the 90th day following consummation of
the Registered Exchange Offer or such longer period if extended pursuant to Section 4(k) as a
result of the occurrence of any of the events set forth in Sections 4(c)(ii) through (v) hereof and
(ii) such time as no Exchanging Dealer holds Registrable Securities, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement.
“Exchange Offer Registration Statement” shall mean a registration statement of the Issuers 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 thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
“Exchanging Dealer” shall mean any Holder (which may include any Initial Purchaser) that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its
own account as a result of market-making activities or other trading activities (but not directly
from any Issuer or any Affiliate of any Issuer) for New Securities.
“Final Memorandum” shall mean the offering memorandum, dated April 11, 2007, relating to offer
and sale of the Securities, including any and all exhibits thereto and any information incorporated
by reference therein as of such date.
“Guarantees” shall have the meaning set forth in the preamble hereto.
“Guarantors” shall have the meaning set forth in the preamble hereto.
“Holder” shall have the meaning set forth in the preamble hereto.
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“Indenture” shall mean the Indenture relating to the Securities, dated as of April 19, 2007,
between the Company and U.S. Bank National Association, as trustee, as the same may be amended from
time to time in accordance with the terms thereof.
“Initial Placement” shall have the meaning set forth in the preamble hereto.
“Initial Purchaser” shall have the meaning set forth in the preamble hereto.
“Issuers” shall have the meaning set forth in the preamble hereto.
“Losses” shall have the meaning set forth in Section 6(d) hereof.
“Majority Holders” shall mean, on any date, Holders of a majority of the aggregate principal
amount of Securities registered under a Registration Statement.
“Managing Underwriters” shall mean the investment banker or investment bankers and manager or
managers that administer an underwritten offering, if any, under a Registration Statement.
“NASD Rules” shall mean the Conduct Rules and the By-Laws of the National Association of
Securities Dealers, Inc.
“New Securities” shall mean debt securities of the Company, and guarantees by the Guarantors,
in each case identical in all material respects to the Cash Pay Notes or the Toggle Notes, as
applicable (except that the transfer restrictions shall be modified or eliminated, as appropriate)
to be issued under the Indenture.
“Notes” shall have the meaning set forth in the preamble hereto.
“Prospectus” shall mean the prospectus included in any Registration Statement (including,
without limitation, 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), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the New Securities covered by such Registration Statement, and all
amendments and supplements thereto, including any and all exhibits thereto and any information
incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble hereto.
“Registered Exchange Offer” shall mean the proposed offer of the Issuers to issue and deliver
to the Holders of the Securities that are not prohibited by any law or policy of the Commission
from participating in such offer, in exchange for the Securities, a like aggregate principal amount
of the New Securities.
“Registrable Securities” shall mean (i) Securities other than those that have been (A)
registered under a Registration Statement and disposed of in accordance therewith or (B)
distributed to the public pursuant to Rule 144 under the Act or any successor rule or regulation
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thereto that may be adopted by the Commission and (ii) any New Securities resale of which by
the Holder thereof requires compliance with the prospectus delivery requirements of the Act.
“Registration Default Damages” shall have the meaning set forth in Section 8 hereof.
“Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any 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.
“Securities” shall have the meaning set forth in the preamble hereto.
“Shelf Registration” shall mean a registration effected pursuant to Section 3 hereof.
“Shelf Registration Period” has the meaning set forth in Section 3(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company
pursuant to the provisions of Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the Act, or any similar rule
that may be adopted by the Commission, 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.
“Toggle Notes” shall have the meaning set forth in the preamble hereto.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Underwriter” shall mean any underwriter of Securities in connection with an offering thereof
under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) Unless otherwise not permitted by applicable law,
the Company shall prepare and, not later than 365 days following the Closing Date (or if such day
is not a Business Day, the next succeeding Business Day), shall file with the Commission the
Exchange Offer Registration Statement with respect to the Registered Exchange Offer. The Issuers
shall use their commercially reasonable efforts to cause the Exchange Offer Registration Statement
to become effective under the Act within 455 days of the Closing Date (or if such day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers shall, as
soon as practicable, commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities
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for New Securities (assuming that such Holder is not an Affiliate of any Issuer, acquires the
New Securities in the ordinary course of such Holder’s business, has no arrangements with any
person to participate in the distribution of the New Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to trade such New
Securities 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.
(c) In connection with the Registered Exchange Offer, the Company shall:
(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; provided that the Company shall only be required to mail such Prospectus
to Holders of which the Company is aware after reasonable inquiry;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days and not
more than 30 Business Days after the date notice thereof is mailed to the Holders (or, in
each case, longer if required by applicable law);
(iii) use its commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required, under
the Act to ensure that it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan in New York City, which may be the Trustee or an
Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Company is conducting the
Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(pub. avail. June 5, 1991); and (B) including a representation that the Issuers have not
entered into any arrangement or understanding with any person to distribute the New
Securities to be received in the Registered Exchange Offer and that, to the best of the
Issuers’ information and belief, each Holder participating in the Registered Exchange Offer
is acquiring the New Securities in the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
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(d) As soon as practicable after the close of the Registered Exchange Offer, the Issuers
shall:
(i) accept for exchange all Securities tendered and not validly withdrawn pursuant to
the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with Section 4(s) all
Securities so accepted for exchange; and
(iii) use its commercially reasonable efforts to cause the Trustee to promptly
authenticate and deliver to each Holder of Securities a principal amount of New Securities
equal to the principal amount of the Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and
Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirements of the Act in connection with any
secondary resale transaction, which 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 under the Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the Issuers or one of their
Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be acquired in the ordinary course
of business;
(ii) such Holder will have no arrangement or understanding with any person to
participate in the distribution of the Securities or the New Securities within the meaning
of the Act; and
(iii) such Holder is not an Affiliate of the Issuers.
(f) If any Initial Purchaser determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an
unsold allotment, at the request of such Initial Purchaser, the Issuers shall issue and deliver to
such Initial Purchaser (exclusively for resale under a Shelf Registration Statement) or the person
purchasing New Securities registered under a Shelf Registration Statement as contemplated by
Section 3 hereof from such Initial Purchaser, in exchange for such Securities, a like principal
amount of New Securities. The Issuers shall use their commercially reasonable efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such New Securities as for New Securities
issued pursuant to the Registered Exchange Offer.
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3. Shelf Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission’s staff, the Issuers determine upon advice of their
outside counsel they are not permitted to effect the Registered Exchange Offer as contemplated by
Section 2 hereof; or (ii) for any other reason the Registered Exchange Offer is not consummated
within 485 days of the Closing Date; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange Offer; (iv) any
Holder (other than an Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer other than by reason of such Holder being an affiliate of the Company (it being understood
that the requirement that an Exchanging Dealer deliver the prospectus contained in the Exchange
Offer Registration Statement in connection with the sale of New Securities shall not result in such
New Securities being not “freely tradeable”); or (v) in the case of any Initial Purchaser that
participates in the Registered Exchange Offer or acquires New Securities pursuant to Section 2(f)
hereof, such Initial Purchaser does not receive freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment (it being understood that (x) the
requirement that an Initial Purchaser deliver a Prospectus containing the information required by
Item 507 or 508 of Regulation S-K under the Act in connection with sales of New Securities acquired
in exchange for such Securities shall result in such New Securities being not “freely tradeable”;
and (y) the requirement that an Exchanging Dealer deliver a Prospectus in connection with sales of
New Securities acquired in the Registered Exchange Offer in exchange for Securities acquired as a
result of market-making activities or other trading activities shall not result in such New
Securities being not “freely tradeable”), the Issuers shall effect a Shelf Registration Statement
in accordance with subsection (b) below.
(b) (i) The Issuers shall as promptly as practicable (but in no event more than 365 days
after so required or requested pursuant to this Section 3), file with the Commission and shall use
their reasonable best efforts to cause to be declared effective under the Act within 455 days after
so required or requested, a Shelf Registration Statement, or shall, if permitted by Rule 430B under
the Act, otherwise designate an existing registration statement filed with the Commission for use
by the Holders as a Shelf Registration Statement, relating to the offer and sale of the Securities
or the New Securities, 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; provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder
(with the Initial Purchasers’ agreement thereto being evidenced by their execution of this
Agreement); and provided further, that with respect to New Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an unsold allotment, the Issuers
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 Item
507 or 508 of Regulation S-K, as applicable, in satisfaction of its obligations under this
subsection 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.
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(ii) Subject to Section 4(k), the Issuers shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as required by the
Act, in order to permit the Prospectus forming part thereof to be usable by Holders for a period
(the “Shelf Registration Period”) from the date the Shelf Registration Statement is declared
effective by the Commission until the earlier of (A) the second anniversary thereof, (B) the date
upon which all the Securities or New Securities, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or (C) the date upon which
all the Securities and New Securities are no longer restricted securities (as defined in Rule 144
under the Act). The Issuers shall be deemed not to have used their reasonable best 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 Securities covered thereby not being able to offer
and sell such Securities at any time during the Shelf Registration Period, unless such action is
(x) required by applicable law or otherwise undertaken by the Issuers in good faith and for valid
business reasons (not including avoidance of the Issuers’ obligations hereunder), including the
acquisition or divestiture of assets, and (y) permitted pursuant to Section 4(k)(ii) hereof.
(iii) The Issuers shall cause the Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement
or such amendment or supplement, (A) to comply in all material respects with the applicable
requirements of the Act; and (B) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein (in the case of the Prospectus, in the light of the circumstances under which they were
made) not misleading, it being understood and agreed that the Issuers shall not be responsible for
information provided by or on behalf of Holders.
4. Additional Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply.
(a) The Issuers shall:
(i) furnish, in each case if requested in writing, to each of the
Representatives, in the case of an Exchange Offer Registration Statement, and to
counsel for the Holders of Registrable Securities, in the case of a Shelf
Registration Statement, not less than five Business Days prior to the filing or
designation thereof with the Commission, a copy of any Exchange Offer Registration
Statement and any Shelf Registration Statement, as applicable, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus included therein
(including all documents incorporated by reference therein after the initial filing)
and shall use their commercially reasonable efforts to reflect in each such
document, when so filed with the Commission, such comments as the Representatives
reasonably propose;
(ii) include the information set forth in Annex A hereto on the facing page of
the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
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details of the Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus contained in the Exchange Offer Registration
Statement, and in Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the information required by
Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the
Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the
Holders that propose to sell Securities pursuant to the Shelf Registration Statement
as selling security holders in such a manner as to permit such Holders to deliver
the Prospectus contained therein to purchasers of Securities or New Securities, as
applicable, in accordance with applicable law.
(b) The Issuers shall use their commercially reasonable efforts to ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all
material respects with the Act; and
(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.
(c) The Company shall advise the Representatives, the Holders of Securities covered by
any Shelf Registration Statement (but only to such Holders as are named as selling security
holders in the prospectus forming part of such Shelf Registration Statement) and any
Exchanging Dealer under any Exchange Offer Registration Statement that has provided in
writing to the Issuers a telephone or facsimile number and address for notices, and, if
requested by any Representative or any such Holder or Exchanging Dealer, shall confirm such
advice in writing (which notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the Prospectus until the Issuers shall
have remedied the basis for such suspension) or the Issuers decide to resume the use of the
Prospectus, as the case may be:
(i) when a Registration Statement and any amendment thereto has been filed with
the Commission or any Registration Statement has been designated for use by the
Holders and when the Registration Statement or any post effective amendment thereto
has become effective;
(ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
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(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of any
proceeding for that purpose;
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the securities included therein for sale in any
jurisdiction or the institution or threatening of any proceeding for such purpose;
and
(v) unless notice has been provided pursuant to Section 4(k)(ii), of the
happening of any event that requires any change in the Registration Statement or the
Prospectus so that, as of such date, they (A) do not contain any untrue statement of
a material fact and (B) 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 the light of the circumstances under which they were made) not misleading.
(d) The Issuers shall use their commercially reasonable efforts to prevent the issuance
of any order suspending the effectiveness of any Registration Statement or the qualification
of the securities therein for sale in any jurisdiction and, if issued, to obtain as soon as
practicable the withdrawal thereof.
(e) The Issuers shall furnish to each Holder of Securities covered by any Shelf
Registration Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material incorporated
therein by reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder of
Securities covered by 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 in
writing. Subject to the provisions of this Agreement, the Company consents to the use of
the Prospectus or any amendment or supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of the Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by reference therein,
and, if the Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Issuers shall promptly deliver to each Initial Purchaser, each Exchanging
Dealer and each other person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the Prospectus
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included in such Exchange Offer Registration Statement and any amendment or supplement
thereto as any such person may reasonably request in writing. Subject to the provisions of
this Agreement, the Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by any Initial Purchaser, any Exchanging Dealer and any such other person
that may be required to deliver a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the New Securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant
to any Registration Statement, the Issuers shall use their commercially reasonable efforts
to arrange, if necessary, for the qualification of the Securities or the New Securities, as
applicable, for sale under the laws of such jurisdictions as any Holder shall reasonably
request and shall maintain such qualification in effect so long as required; provided that
in no event shall the Issuers be obligated to qualify to do business in any jurisdiction
where they are not then so qualified or to take any action that would subject it to service
of process in suits or to taxation, other than those arising out of the Initial Placement,
the Registered Exchange Offer or any offering pursuant to a Shelf Registration Statement, in
any such jurisdiction where they are not then so subject.
(j) The Issuers shall cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing New Securities or Securities to be
issued or sold pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may request in a reasonable
period of time prior to sales of Securities pursuant to such Registration Statement.
(k) (i) Upon the occurrence of any event contemplated by subsections (c)(ii) through
(v) above, the Issuers shall promptly (or within the time period provided for by clause
(ii) hereof, if applicable) prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to Initial Purchasers of the
Securities included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of the Exchange
Offer Registration Statement provided for in Section 2 shall be extended by the number of
days from and including the date of the giving of a notice of suspension pursuant to Section
4(c) to and including the date when the Initial Purchasers, the Holders of the Securities
and any known Exchanging Dealer shall have received such amended or supplemented Prospectus
pursuant to this Section.
(ii) Upon the occurrence or existence of any pending corporate development or any other
material event that, in the reasonable judgment of the Issuers, makes it appropriate to
suspend the availability of a Shelf Registration Statement and the related Prospectus, the
Issuers shall give notice (without notice of the nature or details of such
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events) to the Holders (but only to such Holders as are named as selling security
holders in the prospectus forming part of such Shelf Registration Statement) that the
availability of the Shelf Registration is suspended and, upon actual receipt of any such
notice each Holder agrees not to sell any Registrable Securities pursuant to the Shelf
Registration until such Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(i) hereof, or until it is advised in writing by the Issuers that
the Prospectus may be used, and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in such Prospectus. The
period during which the availability of the Shelf Registration and any Prospectus is
suspended shall not exceed 45 days in any three-month period or 90 days in any twelve-month
period.
(l) Not later than the effective or designation date of any Registration Statement, the
Issuers shall provide a CUSIP number for the Securities or the New Securities, as the case
may be, registered under such Registration Statement and provide the Trustee with printed
certificates for such Securities or New Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Issuers shall comply with all applicable rules and regulations of the
Commission and shall make generally available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Act as soon as practicable after the
effective or designation date of the applicable Registration Statement and in any event no
later than 45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing
after the effective or designation date of the applicable Registration Statement.
(n) The Issuers shall cause the Indenture to be qualified under the Trust Indenture Act
in a timely manner.
(o) The Issuers may require each Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Issuers such information regarding the Holder and
the distribution of such securities as the Company may from time to time reasonably require
for inclusion in such Registration Statement. The Issuers may exclude from such Shelf
Registration Statement the Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Issuers shall enter into
customary agreements (including, if requested, an underwriting agreement in customary form)
and take all other appropriate actions, if any, as the Holders of a majority of the
Securities to be included in the Shelf Registration Statement shall reasonably request in
order to facilitate the disposition of the Securities or New Securities, as applicable.
(q) In the case of any Shelf Registration Statement, the Issuers shall:
(i) make reasonably available for inspection by the Holders of Securities to be
registered thereunder, any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney, accountant or other
Sch. I-12
agent retained by the Holders or any such underwriter all relevant financial
and other records and pertinent corporate documents of the Issuers and their
subsidiaries;
(ii) cause each Issuer’s officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence examinations;
provided, however, that the foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchasers by the Representatives and on behalf
of the other parties, by one counsel designated by and on behalf of such other
parties as described in Section 5 hereof (all such information shall be kept
confidential by the recipients pursuant to a customary confidentiality agreement to
be executed by such recipients prior to receiving such information);
(iii) make such representations and warranties to the Holders of Securities
registered thereunder and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Issuers 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
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 underwriters;
(v) obtain “comfort” letters and updates thereof from the independent certified
public accountants of the Issuers (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuers 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 Securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in “comfort”
letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably requested by
the Majority Holders or the Managing Underwriters, if any, including those to
evidence compliance with Section 4(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q) shall be
performed at (A) the effectiveness or designation of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
Sch. I-13
(r) In the case of any Exchange Offer Registration Statement, the Issuers shall, if
requested by an Initial Purchaser, or by a Broker-Dealer that holds Securities that were
acquired as a result of market making or other trading activities:
(i) make reasonably available for inspection by the requesting party, and any
attorney, accountant or other agent retained by the requesting party, all relevant
financial and other records, pertinent corporate documents and properties of the
Issuers and their subsidiaries;
(ii) cause each Issuer’s officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the requesting
party or any such attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence examinations;
(iii) make such representations and warranties to the requesting party, in
form, substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including, but not limited to,
those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the requesting party and its counsel, addressed to the requesting party, covering
such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the requesting
party or its counsel;
(v) obtain “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 the
requesting party, in customary form and covering matters of the type customarily
covered in “comfort” letters in connection with primary underwritten offerings, or
if requested by the requesting party or its counsel in lieu of a “comfort” letter,
an agreed-upon procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by the requesting party or its counsel; and
(vi) deliver such documents and certificates as may be reasonably requested by
the requesting party or its counsel, including those to evidence compliance with
Section 4(k) and with conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this Section
shall be performed at the close of the Registered Exchange Offer and the effective date of
any post-effective amendment to the Exchange Offer Registration Statement.
Sch. I-14
(s) If a Registered Exchange Offer is to be consummated, upon delivery of the
Securities by Holders to the Issuers (or to such other person as directed by the Issuers) in
exchange for the New Securities, the Issuers shall xxxx, or caused to be marked, on the
Securities so exchanged that such Securities are being cancelled in exchange for the New
Securities. In no event shall the Securities be marked as paid or otherwise satisfied.
(t) The Issuers shall use their commercially reasonable efforts if the Securities have
been rated prior to the initial sale of such Securities, to confirm such ratings will apply
to the Securities or the New Securities, as the case may be, covered by a Registration
Statement.
(u) In the event that any Broker-Dealer shall underwrite any Securities or participate
as a member of an underwriting syndicate or selling group or “assist in the distribution”
(within the meaning of the NASD Rules) thereof, whether as a Holder of such Securities or as
an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Issuers shall assist such Broker-Dealer in complying with the NASD Rules.
(v) The Issuers shall use their commercially reasonable efforts to take all other steps
necessary to effect the registration of the Securities or the New Securities, as the case
may be, covered by a Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses incurred in connection
with the performance of their obligations under Sections 2, 3 and 4 hereof (other than any
underwriter discounts or commissions) and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or counsel (which shall
initially be Xxxxxx Xxxxxx & Xxxxxxx llp, but which may be another nationally recognized
law firm experienced in securities matters designated by the Majority Holders) to act as counsel
for the Holders in connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and disbursements of
counsel acting in connection therewith.
6. Indemnification and Contribution. (a) The Issuers agree, jointly and severally,
to indemnify and hold harmless each Holder of Securities or New Securities, as the case may be,
covered by any Registration Statement, each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors, officers,
employees, Affiliates and agents of each such Holder, Initial Purchaser or Exchanging Dealer and
each person who controls any such Holder, Initial Purchaser or Exchanging Dealer within the meaning
of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
Sch. I-15
(in the case of any preliminary Prospectus or the Prospectus, in the light of the
circumstances under which they were made) not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that no Issuer will 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 such untrue
statement or alleged untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Issuers by or on behalf of the party
claiming indemnification specifically for inclusion therein. This indemnity agreement shall be in
addition to any liability that the Issuers may otherwise have.
Each Issuer also jointly and severally agrees to indemnify as provided in this Section 6(a) or
contribute as provided in Section 6(d) hereof to Losses of each underwriter, if any, of Securities
or New Securities, as the case may be, registered under a Shelf Registration Statement, their
directors, officers, employees, Affiliates or agents and each person who controls such underwriter
on substantially the same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of Securities covered by a Registration Statement (including each Initial
Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and
hold harmless the Issuers, each of its directors, each of their officers who signs such
Registration Statement and each person who controls any Issuer within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the Issuers to each such
Holder, but only with reference to written information relating to such Holder furnished to the
Issuers by or on behalf of such Holder specifically for inclusion in the documents referred to in
the foregoing indemnity; and, subject to the forgoing clause, shall reimburse, as incurred, the
Issuers for any legal or other expenses reasonably incurred by the Issuers or any such controlling
person in connection with investigation or defending any loss, claim, damage, liability or action
in respect thereof. This indemnity agreement will be in addition to any liability that any such
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify the indemnifying party in writing 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; 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. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any separate
counsel, other than local counsel if not appointed by the indemnifying party, retained by the
indemnified party or parties except as set forth below); provided, however, that
Sch. I-16
such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel (including local counsel) to represent the
indemnified party in an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of the
indemnified parties (such consent not to be unreasonably withheld or delayed), settle or compromise
or consent to the entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding. The Issuers shall
not be liable under this Section 6 for any settlement or compromise or consent to the entry of
judgment of any claim, action, suit or proceeding effected without its prior written consent, which
consent shall not be reasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending any loss, claim, liability, damage or
action) (collectively “Losses”) to which such indemnified party may be subject 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 Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in no
case shall any Initial Purchaser be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case of a New Security,
applicable to the Security that was exchangeable into such New Security, as set forth in the Final
Memorandum, nor shall any underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence 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 as well as any other relevant equitable considerations. Benefits received by the
Issuers shall be deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth in the Final Memorandum. Benefits received by the Initial
Purchasers shall
Sch. I-17
be deemed to be equal to the total purchase discounts and commissions as set forth on the
cover page of the Final Memorandum, and benefits received by any other Holders shall be deemed to
be equal to the value of receiving Securities or New Securities, as applicable, registered under
the Act. Benefits received by any underwriter shall be deemed to be equal to 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. Relative fault shall be
determined by reference to, among other things, whether any untrue or any alleged untrue statement
of a material fact or omission or alleged omission to state a material fact relates to information
provided by the indemnifying party, on the one hand, or by the indemnified party, on the other
hand, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. 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 any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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, each person who controls a Holder
within the meaning of either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such Holder, and each person who
controls any Issuer within the meaning of either the Act or the Exchange Act, each officer,
director, employee and agent of any Issuer who shall have signed the Registration Statement and
each director of the Issuers shall have the same rights to contribution as the Issuers, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuers or any of the indemnified persons
referred to in this Section 6, and will survive the sale by a Holder of securities covered by a
Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or New Securities, as
the case may be, covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority Holders and shall be
reasonably acceptable to the Issuers.
(b) No person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such person (i) agrees to sell such person’s Securities or New Securities, as the
case may be, 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.
8. Registration Defaults. If:
(a) on or prior to the 365th day following the Closing Date, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been filed or designated, as
the case may be, with the Commission; or
Sch. I-18
(b) on or prior to the 455th day following the Closing Date, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been declared effective; or
(c) on or prior to the 485th day after the Exchange Offer Registration Statement is
declared effective, the Registered Exchange Offer has not been consummated;
(d) notwithstanding that the Issuers have consummated the Exchange Offer, if the
Issuers are required to file a Shelf Registration Statement, such Shelf Registration
Statement is not filed or has not been declared effective or designated within the time
period provided for in this Agreement; or
(e) after either the Exchange Offer Registration Statement or the Shelf Registration
Statement has been declared effective, such Registration Statement thereafter ceases to be
effective or usable (subject to the exceptions contained in this Agreement) in connection
with resales of the securities in accordance with and during the periods specified in this
Agreement;
(each such event referred to in clauses (a) through (e) a “Registration Default”), interest
(“Registration Default Damages”) will accrue on the principal amount of the securities (in addition
to the stated interest on the securities) from and including the date on which any Registration
Default shall occur to but excluding the date on which all Registration Defaults have been cured.
Registration Default Damages will accrue at a rate of 0.25% per annum during the 90-day period
immediately following the occurrence of such Registration Default and shall increase by 0.25% per
annum at the end of each subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum; provided, however, that (i) upon the filing or designation of the Registration Statement (in
the case of clause (a) above), (ii) upon the effectiveness of the Registration Statement (in the
case of clause (b) above), (iii) upon the consummation of the Registered Exchange Offer (in the
case of clause (c) above), (iv) upon the filing, effectiveness or designation of a Shelf
Registration Statement, as the case may be (in the case of clause (d) above), or (v) upon the
effectiveness of the Registration Statement which had ceased to remain effective (in the case of
clause (e) above), Registration Default Damages shall cease to accrue. Notwithstanding any
provision herein to the contrary, Registration Default Damages shall not accrue on any Security
that is no longer a Registrable Security, nor shall the amount of Registration Default Damages
increase because more than one of the circumstances described in clauses (a) through (e) above has
occurred and is pending.
9. No Inconsistent Agreements. The Issuers have not entered into, and agrees not to
enter into, any agreement with respect to their securities that is inconsistent with the rights
granted to the Holders herein or that otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement 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 Holders of a
majority of the aggregate principal amount of the Registrable Securities outstanding;
provided that, with respect to any matter that directly or indirectly affects the rights of
any Initial Purchaser hereunder, the Company shall obtain the written consent of each such
Sch. I-19
Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is
to be effective; provided, further, that no amendment, qualification, supplement,
waiver or consent with respect to Section 8 hereof shall be effective as against any Holder of
Registered Securities unless consented to in writing by such Holder; and provided,
further, that the provisions of this Section 10 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 Initial Purchasers and each Holder.
Notwithstanding the foregoing (except the foregoing provisos), a waiver or consent to departure
from the provisions hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the rights of other Holders
may be given by the Majority Holders, determined on the basis of Securities or New Securities, as
the case may be, being sold rather than registered under such Registration Statement.
11. Notices. All notices, requests 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:
(a) if to a Holder, at the most current address given by such Holder to the Issuers in
accordance with the provisions of this Section 11, which address initially is, with respect
to each Holder, the address of such Holder maintained by the Registrar under the Indenture;
(b) if to the Representatives, initially at the address or addresses set forth in the
Purchase Agreement; and
(c) if to the Issuers, initially at the Company’s address set forth in the Purchase
Agreement.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchasers or the Issuers by notice to the other parties may designate additional
or different addresses for subsequent notices or communications.
12. Remedies. Each Holder, in addition to being entitled to exercise all rights
provided to it herein, in the Indenture or in the Purchase Agreement or granted by law, including
recovery of liquidated or other damages, will be entitled to specific performance of its rights
under this Agreement. The Issuers agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive in any action for specific performance the defense that a remedy at law would be
adequate. Notwithstanding the foregoing, the Registration Default Damages are intended to
constitute the sole monetary damages that a Holder may collect as a result of the occurrence of any
of the conditions described in Section 8 and any obligations that result in any such condition.
Sch. I-20
13. Successors. This Agreement shall inure to the benefit of and be binding upon the
parties hereto, their respective successors and assigns, including, without the need for an express
assignment or any consent by the Issuers thereto, subsequent Holders of Securities and the New
Securities, and the indemnified persons referred to in Section 6 hereof. The Issuers hereby agree
to extend the benefits of this Agreement to any Holder of Securities and the New Securities, and
any such Holder may specifically enforce the provisions of this Agreement as if an original party
hereto.
14. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
15. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
16. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed in the
State of New York. The parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement.
17. Severability. In the event that any one of 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.
18. Securities Held by the Issuers, etc. Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities or New Securities is required
hereunder, Securities or New Securities, as applicable, held by the Issuers or their Affiliates
(other than subsequent Holders of Securities or New Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or New Securities)
shall not be counted in determining whether such consent or approval was given by the Holders of
such required percentage.
Sch. I-21
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Issuers and the several Initial Purchasers.
| Very truly yours, UNITED SURGICAL PARTNERS INTERNATIONAL, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Chief Financial Officer | ||||
Sch. I-22
| THE GUARANTORS SET FORTH ON
EXHIBIT I HERETO, as Guarantors |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President | ||||
Sch. I-23
EXHIBIT I
GUARANTORS
Georgia Musculoskeletal Network, Inc.
Health Horizons of Kansas City, Inc.
Health Horizons of Murfreesboro, Inc.
Health Horizons of Nashville, Inc.
Medcenter Management Services, Inc.
North MacArthur Surgery Center, LLC
Ortho Excel, Inc.
OrthoLink ASC Corporation
OrthoLink Physicians Corporation
OrthoLink Radiology Services Corporation
OrthoLink/Georgia ASC, Inc.
OrthoLink/New Mexico ASC, Inc.
OrthoLink/TN ASC, Inc.
Same Day Surgery, L.L.C.
Specialty Surgicenters, Inc.
SSI Holdings, Inc.
Surginet of Northwest Houston, Inc.
Surginet of Rivergate, Inc.
Surginet, Inc.
Surgis Management Services, Inc.
Surgis of Chico, Inc.
Surgis of Pearland, Inc.
Surgis of Phoenix, Inc.
Surgis of Xxxxxxx, Inc.
Surgis of Sand Lake, Inc.
Surgis of Sonoma, Inc.
Surgis of Victoria, Inc.
Surgis of Willowbrook, Inc.
Surgis, Inc.
United Surgical of Atlanta, Inc.
United Surgical Partners Holdings, Inc.
USP Alexandria, Inc.
USP Austin, Inc.
USP Austintown, Inc.
USP Baltimore, Inc.
USP Baton Rouge, Inc.
USP Bridgeton, Inc.
USP Cedar Park, Inc
USP Central New Jersey, Inc.
USP Chesterfield, Inc.
USP Chicago, Inc.
USP Cleveland, Inc.
Health Horizons of Kansas City, Inc.
Health Horizons of Murfreesboro, Inc.
Health Horizons of Nashville, Inc.
Medcenter Management Services, Inc.
North MacArthur Surgery Center, LLC
Ortho Excel, Inc.
OrthoLink ASC Corporation
OrthoLink Physicians Corporation
OrthoLink Radiology Services Corporation
OrthoLink/Georgia ASC, Inc.
OrthoLink/New Mexico ASC, Inc.
OrthoLink/TN ASC, Inc.
Same Day Surgery, L.L.C.
Specialty Surgicenters, Inc.
SSI Holdings, Inc.
Surginet of Northwest Houston, Inc.
Surginet of Rivergate, Inc.
Surginet, Inc.
Surgis Management Services, Inc.
Surgis of Chico, Inc.
Surgis of Pearland, Inc.
Surgis of Phoenix, Inc.
Surgis of Xxxxxxx, Inc.
Surgis of Sand Lake, Inc.
Surgis of Sonoma, Inc.
Surgis of Victoria, Inc.
Surgis of Willowbrook, Inc.
Surgis, Inc.
United Surgical of Atlanta, Inc.
United Surgical Partners Holdings, Inc.
USP Alexandria, Inc.
USP Austin, Inc.
USP Austintown, Inc.
USP Baltimore, Inc.
USP Baton Rouge, Inc.
USP Bridgeton, Inc.
USP Cedar Park, Inc
USP Central New Jersey, Inc.
USP Chesterfield, Inc.
USP Chicago, Inc.
USP Cleveland, Inc.
Sch. I-24
USP Coast, Inc.
USP Columbia, Inc.
USP Corpus Christi, Inc.
USP Cottonwood, Inc.
USP Creve Coeur, Inc.
USP Decatur, Inc.
USP Des Xxxxx, Inc.
USP Destin, Inc.
USP Domestic Holdings, Inc.
USP Florissant, Inc.
USP Fredericksburg, Inc.
USP Glendale, Inc.
USP Harbour View, Inc.
USP Houston, Inc.
USP Indiana, Inc.
USP International Holdings, Inc.
USP Kansas City, Inc.
USP Las Cruces, Inc.
USP Long Island, Inc.
USP Lyndhurst, Inc.
USP Mason Ridge, Inc.
USP Michigan, Inc.
USP Midwest, Inc.
USP Mission Hills, Inc.
USP Nevada, Inc.
USP New Jersey, Inc.
USP Newport News, Inc.
USP North Kansas City, Inc.
USP North Texas, Inc.
USP Oklahoma, Inc.
USP Olive, Inc.
USP Oxnard, Inc.
USP Phoenix, Inc.
USP Reading, Inc.
USP Richmond II, Inc.
USP Richmond, Inc.
USP Sacramento, Inc.
USP San Antonio, Inc.
USP San Xxxxxxx, Inc.
USP Sarasota, Inc.
USP St. Xxxxxx, Inc.
USP Sunset Hills, Inc.
USP Tennessee, Inc.
USP Torrance, Inc.
USP Virginia Beach, Inc.
USP Xxxxxxx Xxxxxx, Inc.
USP Columbia, Inc.
USP Corpus Christi, Inc.
USP Cottonwood, Inc.
USP Creve Coeur, Inc.
USP Decatur, Inc.
USP Des Xxxxx, Inc.
USP Destin, Inc.
USP Domestic Holdings, Inc.
USP Florissant, Inc.
USP Fredericksburg, Inc.
USP Glendale, Inc.
USP Harbour View, Inc.
USP Houston, Inc.
USP Indiana, Inc.
USP International Holdings, Inc.
USP Kansas City, Inc.
USP Las Cruces, Inc.
USP Long Island, Inc.
USP Lyndhurst, Inc.
USP Mason Ridge, Inc.
USP Michigan, Inc.
USP Midwest, Inc.
USP Mission Hills, Inc.
USP Nevada, Inc.
USP New Jersey, Inc.
USP Newport News, Inc.
USP North Kansas City, Inc.
USP North Texas, Inc.
USP Oklahoma, Inc.
USP Olive, Inc.
USP Oxnard, Inc.
USP Phoenix, Inc.
USP Reading, Inc.
USP Richmond II, Inc.
USP Richmond, Inc.
USP Sacramento, Inc.
USP San Antonio, Inc.
USP San Xxxxxxx, Inc.
USP Sarasota, Inc.
USP St. Xxxxxx, Inc.
USP Sunset Hills, Inc.
USP Tennessee, Inc.
USP Torrance, Inc.
USP Virginia Beach, Inc.
USP Xxxxxxx Xxxxxx, Inc.
Sch. I-25
USP West Covina, Inc.
USP Westwood, Inc.
USP Winter Park, Inc.
USPI San Diego, Inc.
USP Westwood, Inc.
USP Winter Park, Inc.
USPI San Diego, Inc.
Sch. I-26
| USP ASSURANCE COMPANY, |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: President | ||||
| PHYSICIANS DATA PROFESSIONALS, INC., |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Secretary | ||||
-2-
| USP SECURITIES CORPORATION |
||||
| By: | /s/ Xxx Xxxxxxx | |||
| Title: President | ||||
-3-
| PASADENA HOLDINGS, LLC USP NEVADA HOLDINGS, LLC, By: USP North Texas, Inc., its manager |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President | ||||
-4-
| SAME DAY MANAGEMENT, L.L.C., By: Same Day Surgery LLC, its sole member |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President | ||||
-5-
| WHASA, L.C., By: Surginet, Inc., its sole member |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President | ||||
-6-
| USP TEXAS, L.P., By: USP North Texas, Inc., its general partner |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President | ||||
-7-
| USP TEXAS AIR, LLC By: USP North Texas, Inc., its sole member |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: President | ||||
-0-
| XXXXXXX XXXXXXX XX XXXXXXX II, L.L.C., |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: Manager | ||||
-9-
| ISS-ORLANDO, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Title: Manager | ||||
-10-
| SURGERY CENTERS HOLDINGS COMPANY, L.L.C., By: Surgery Centers of America II, L.L.C., its sole member |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Title: Manager | ||||
-11-
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
accepted as of the date first above written.
Citigroup Global Markets Inc.
Xxxxxx Brothers Inc.
Xxxxxx Brothers Inc.
By:
|
Citigroup Global Markets Inc. | |||
By:
|
/s/ Xxxx Xxxxxxx | |||
| Title: Managing Director | ||||
By:
|
Xxxxxx Brothers Inc. | |||
By:
|
/s/ Xxx Xxxxxx | |||
| Title: Senior Vice President |
For themselves and the other several
Initial Purchasers named in Schedule I
to the Purchase Agreement.
Initial Purchasers named in Schedule I
to the Purchase Agreement.
-12-
ANNEX A
Each broker-dealer that receives new securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new
securities. 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 in connection with resales of new securities received in exchange for
securities where such securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The issuers have agreed that, starting on the expiration
date and ending on the close of business one year after the expiration date, 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 new securities for its own account in exchange for
securities, where such securities 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 new securities. See “Plan of Distribution”.
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new
securities. 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 new securities received in exchange for securities
where such securities were acquired as a result of market-making activities or other trading
activities. The issuers have has agreed that, starting on the expiration date and ending on the
close of business one year after the expiration date, 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 ___, ___, all dealers effecting transactions in the new securities may be
required to deliver a prospectus.
The company will not receive any proceeds from any sale of new securities by brokers-dealers.
New securities received by broker-dealers for their own account pursuant to the 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 new securities 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 new securities. Any broker-dealer
that resells new securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such new securities may be
deemed to be an “underwriter” within the meaning of the Act and any profit of any such resale of
new securities 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.
For a period of one year after the expiration date, the issuers 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 issuers have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel for the holder of
the securities) other than commissions or concessions of any brokers or dealers and will indemnify
the holders of the securities (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
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW 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: |
||||
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of New Securities and it has no arrangements or understandings with any
person to participate in a distribution of the New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchange for New Securities 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 New Securities; 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
