Exhibit 4.8
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 25, 2004
By and Among
ISPAT INLAND ULC,
the GUARANTORS named herein
and
UBS SECURITIES LLC
as Initial Purchaser
Senior Secured Floating Rate Notes Due 2010
9.75% Senior Secured Notes due 2014
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TABLE OF CONTENTS
Page
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Section 1. Definitions................................................................ 1
Section 2. Exchange Offer............................................................. 4
Section 3. Shelf Registration......................................................... 8
Section 4. Additional Interest........................................................ 8
Section 5. Registration Procedures.................................................... 10
Section 6. Registration Expenses...................................................... 18
Section 7. Indemnification............................................................ 19
Section 8. Rules 144 and 144A......................................................... 22
Section 9. Underwritten Registrations................................................. 22
Section 10. Miscellaneous.............................................................. 22
(a) No Inconsistent Agreements................................................. 22
(b) Adjustments Affecting Registrable Notes.................................... 23
(c) Amendments and Waivers..................................................... 23
(d) Notices.................................................................... 23
(e) Guarantors................................................................. 24
(f) Successors and Assigns..................................................... 24
(g) Counterparts............................................................... 24
(h) Headings................................................................... 24
(i) GOVERNING LAW.............................................................. 25
(j) Severability............................................................... 25
(k) Securities Held by the Issuers or Their Affiliates......................... 25
(l) Third-Party Beneficiaries.................................................. 25
(m) Entire Agreement........................................................... 25
(n) Judgment Currency..........................................................
(o) Taxes...................................................................... 25
SIGNATURES................................................................................... S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
March 25, 2004, by and among Ispat Inland ULC, a Nova Scotia unlimited liability
company (the "Company"), and each of the Guarantors (as defined herein) (the
Company and the Guarantors are referred to collectively herein as the
"Issuers"), on the one hand, and UBS Securities LLC (the "Initial Purchaser"),
on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of March 18, 2004, by and among the Issuers and the Initial
Purchaser (the "Purchase Agreement"), relating to the offering of $150,000,000
aggregate principal amount of the Company's Senior Secured Floating Rate Notes
due 2010 (the "Floating Rate Notes") and $650,000,000 aggregate principal amount
of the Company's 9.75% Senior Secured Notes due 2014 (the "Fixed Rate Notes,"
and together with the Floating Rate Notes, the "Senior Secured Notes") (the
Senior Secured Notes including the guarantees thereof by the Guarantors, the
"Notes"). The execution and delivery of this Agreement is a condition to the
Initial Purchaser's obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c) hereof.
"Additional Amounts" shall have the meaning set forth in the
Indenture.
"Additional Interest" shall have the meaning set forth in Section
4(a) hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Additional Interest Payment Date" shall have the meaning set forth
in Section 4(b) hereof.
"Agreement" shall have the meaning set forth in the first
introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Board of Directors" shall have the meaning set forth in Section 5
hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Company" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Company's permitted successors and
assigns.
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"Commission" shall mean the Securities and Exchange Commission.
"day" shall mean a calendar day.
"Delay Period" shall have the meaning set forth in Section 5 hereof.
"Effectiveness Period" shall have the meaning set forth in Section
3(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) hereof.
"First Mortgage Bonds" means $800.0 million aggregate principal
amount of Series Y and Series Z First Mortgage Bonds issued by Ispat Inland Inc.
under the First Mortgage dated April 1, 1928, as amended and supplemented,
between Ispat Inland Inc. and The Bank of New York and Xxxxx X. Xxxxx, as
successor trustees.
"Guarantors" shall mean each of the Persons other than the Company
and the Initial Purchaser executing this Agreement (as set forth on Schedule II
of the Purchase Agreement) on the date hereof and each Person who executes and
delivers a counterpart of this Agreement hereafter pursuant to Section 10(e)
hereof.
"Holder" shall mean any holder of a Registrable Note or Registrable
Notes.
"Indenture" shall mean the Indenture, dated as of March 25, 2004, by
and among the Issuers and LaSalle Bank National Association, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the first
introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
hereof.
"Issue Date" shall mean March 25, 2004, the date of original
issuance of the Notes.
"Issuers" shall have the meaning set forth in the first introductory
paragraph hereto.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"Losses" shall have the meaning set forth in Section 7(a) hereof.
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"NASD" shall have the meaning set forth in Section 5(s) hereof.
"Notes" shall have the meaning set forth in the second introductory
paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a)
hereof.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section 2(b)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(b) hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the second
introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n) hereof.
"Registrable Notes" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iv) hereof is applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, in each case until (i) a Registration Statement (other
than, with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the
Commission and such Note, Exchange Note or such Private Exchange Note, as the
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes that may be resold without restriction under
state and federal securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note has been
sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in Section
4(a) hereof.
"Registration Statement" shall mean any appropriate registration
statement of the Issuers covering any of the Registrable Notes filed with the
Commission under the Securities Act, and
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all amendments and supplements to any 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.
"Requesting Participating Broker-Dealer" shall have the meaning set
forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"series" with respect to the Original Notes, means all Floating Rate
Notes, on the one hand, and all Fixed Rate Notes, on the other; "corresponding
series" with respect to the Exchange Notes, means, in the case of Exchange Notes
issued in the exchange for Floating Rate Notes, Exchange Notes that accrue
interest at the rate applicable to the Floating Rate Notes from time to time,
and with respect to the Exchange Notes issued in exchange for the Fixed Rate
Notes, means Exchange Notes that accrue interest at the rate applicable to the
Fixed Rate Notes from time to time.
"Shelf Filing Event" shall have the meaning set forth in Section
2(c) hereof.
"Shelf Registration" shall have the meaning set forth in Section
3(a) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"underwritten registration" or "underwritten offering" shall mean a
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
Section 2. Exchange Offer
(a) Unless the Exchange Offer would violate applicable law or
interpretation of the staff of the Commission, the Issuers shall (i) file a
Registration Statement (the "Exchange Offer
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Registration Statement") with the Commission on an appropriate registration form
with respect to a registered offer (the "Exchange Offer") to exchange any and
all of the Registrable Notes of each series held by any holder for a like
aggregate principal amount of the corresponding series of notes (including the
guarantees with respect thereto, collectively, the "Exchange Notes") that are
identical in all material respects to the Notes (except that the Exchange Notes
shall not contain restrictive legends, terms with respect to transfer
restrictions or Additional Interest upon a Registration Default) and which
represent the same continuing indebtedness as the Notes, (ii) use their
reasonable best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act and (iii) use their reasonable best
efforts to consummate the Exchange Offer within 180 days after the Issue Date.
Upon the Exchange Offer Registration Statement being declared effective by the
Commission, the Issuers will offer the Exchange Notes in exchange for surrender
of the Notes. The Issuers shall keep the Exchange Offer open for not less than
30 days (or longer if required by applicable law) beginning with the date notice
of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Issuers in writing that (i) any Exchange Notes to be
received by it will be acquired in the ordinary course of its business, (ii) it
has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) it is not an affiliate
of the Company or any Guarantor as defined by Rule 405 of the Securities Act, or
if it is an affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes and (v) if such Holder is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Notes that were acquired as a result of market-making or other trading
activities, it will deliver a prospectus in connection with any resale of such
Exchange Notes.
(b) The Issuers and the Initial Purchaser acknowledge that the
staff of the Commission has taken the position that any broker-dealer that
elects to exchange Notes that were acquired by such broker-dealer for its own
account as a result of market-making or other trading activities for Exchange
Notes in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Issuers and the Initial Purchaser also acknowledge that the
staff of the Commission has taken the position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuers agree to
use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period necessary to comply with
applicable
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law in connection with such resales but in no event more than 180 days after the
date on which the Exchange Registration Statement is declared effective, or such
longer period if extended pursuant to any Delay Period in accordance with the
last paragraph of Section 5 hereof (such period, the "Applicable Period"), or
such earlier date as each Requesting Participating Broker-Dealer shall have
notified the Company in writing that such Requesting Participating Broker-Dealer
has resold all Exchange Notes acquired by it in the Exchange Offer. The Issuers
shall include a plan of distribution in such Exchange Offer Registration
Statement that meets the requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, any Initial
Purchaser or any other Holder holds any Notes acquired by it that have, or that
are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuers upon the request of the Initial
Purchaser or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchaser or any such Holder, as the case may be, in exchange (the
"Private Exchange") for such Notes held by such Initial Purchaser or any such
Holder a like principal amount of notes (the "Private Exchange Notes") of the
Issuers that are identical in all material respects to the Exchange Notes except
that the Private Exchange Notes may be subject to restrictions on transfer and
bear a legend to such effect. The Private Exchange Notes shall be issued
pursuant to the same indenture as the Exchange Notes and bear the same CUSIP
number as the Exchange Notes (if permitted by the CUSIP Service Bureau).
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuers shall have no further registration obligations other than
the Issuers' continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2
applies.
In connection with the Exchange Offer, the Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
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As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes or Private Exchange Notes of the
corresponding series, as the case may be, equal in principal amount to the
Registrable Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuers to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuers and (iii) all governmental approvals shall have been obtained, which
approvals the Company deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture (in either case, with such changes as are necessary to comply
with any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indenture and (b) the Private Exchange
Notes shall be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate class on
any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuers to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 180 days of the Issue Date, (iii) any Holder notifies the
Company prior to the 30th day following consummation of the Exchange Offer that
it is prohibited by law or the applicable interpretations of the staff of the
Commission from participating in the Exchange Offer, (iv) in the case of any
Holder who participates in the Exchange Offer, such Holder does not receive
Exchange Notes on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to the status of
such Holder as an affiliate of any Issuer within the meaning of the Securities
Act) or (v) any Initial Purchaser so requests with respect to Notes or Private
Exchange Notes that have, or that are reasonably likely to be determined to
have, the status of unsold allotments in an initial distribution (each such
event referred to in clauses (i) through (v) of
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this sentence, a "Shelf Filing Event"), then the Issuers shall file a Shelf
Registration pursuant to Section 3 hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the Commission
a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes not exchanged in the
Exchange Offer, Private Exchange Notes and Exchange Notes as to which Section
2(c)(iv) is applicable (the "Shelf Registration"). The Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings). The
Issuers shall not permit any securities other than the Registrable Notes to be
included in the Shelf Registration.
(b) The Issuers shall use all their reasonable best efforts (x) to
cause the Shelf Registration to be declared effective under the Securities Act
on or prior to the later of (A) the 180th day after the Issue Date and (B) the
120th day after the occurrence of the applicable Shelf Filing Event and (y) to
keep the Shelf Registration continuously effective under the Securities Act for
the period ending on the date which is two years from the Issue Date, subject to
extension pursuant to the penultimate paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when all Registrable
Notes covered by the Shelf Registration have been sold in the manner set forth
and as contemplated in the Shelf Registration; provided, however, that (i) the
Effectiveness Period in respect of the Shelf Registration shall be extended to
the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and (ii) the Company may suspend the effectiveness of the Shelf
Registration by written notice to the Holders solely (A) as a result of the
filing of a post-effective amendment to the Shelf Registration to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related Prospectus or (B) to the extent and for so
long as permitted by the penultimate paragraph of Section 5.
(c) Supplements and Amendments. The Issuers agree to supplement or
make amendments to the Shelf Registration as and when required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration or by the Securities Act or rules and regulations thereunder
for shelf registration, or if reasonably requested by the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or by any underwriter of such Registrable Notes.
Section 4. Additional Interest
(a) The Issuers and the Initial Purchaser agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree that if:
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(i) the Exchange Offer is not consummated on or prior to the 180th
day following the Issue Date, or, if that day is not a Business Day, the
next day that is a Business Day; or
(ii) the Shelf Registration is required to be filed but is not
declared effective within the time period specified in Section 3(b)(x), or
is declared effective by such date but thereafter ceases to be effective
or usable (unless the Shelf Registration ceases to be effective or usable
as specifically permitted by the penultimate paragraph of Section 5
hereof),
(each such event referred to in clauses (i) and (ii) a "Registration Default"),
additional interest in the form of additional cash interest ("Additional
Interest") will accrue on the affected Registrable Notes and a like principal
amount of the First Mortgage Bonds. The rate of Additional Interest will be
0.25% per annum for the first 90-day period immediately following the occurrence
of a Registration Default, increasing by an additional 0.25% per annum with
respect to each subsequent 90-day period up to a maximum amount of Additional
Interest of 1.00% per annum, from and including the date on which any such
Registration Default shall occur to, but excluding, the earlier of (1) the date
on which all Registration Defaults have been cured or (2) the date on which such
Registrable Note ceases to be a Registrable Note or otherwise become freely
transferable by Holders other than affiliates of the Issuers without further
registration under the Securities Act. If, after the cure of all Registration
Defaults then in effect, there is a subsequent Registration Default, the rate of
Additional Interest for such subsequent Registration Default shall initially be
0.25% regardless of the rate in effect with respect to any prior Registration
Default at the time of cure of such Registration Default and shall increase in
the manner and be subject to the maximum Additional Interest rate contained in
the preceding sentence.
Notwithstanding the foregoing, (1) the amount of Additional Interest
payable shall not increase because more than one Registration Default has
occurred and is pending and (2) a Holder of Registrable Notes that is not
entitled to the benefits of the Shelf Registration (e.g., such Holder has not
elected to include information) shall not be entitled to Additional Interest
with respect to a Registration Default that pertains to the Shelf Registration.
(b) So long as Notes remain outstanding, the Company shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Additional Interest is required to be paid. Any
amounts of Additional Interest due from the Company pursuant to clauses (a)(i)
or (a)(ii) of this Section 4 will be payable in cash semi-annually on each date
on which interest is required to be paid on the applicable series of Notes under
the Indenture (each a "Additional Interest Payment Date"), commencing with the
first such date occurring after any such Additional Interest commences to
accrue, to Holders to whom regular interest is payable on such Additional
Interest Payment Date with respect to Notes that are Registrable Notes (and
Ispat Inland Inc. shall pay any amount of Additional Interest due from it
pursuant to clauses (a)(i) or (a)(ii) of this Section 4 to the holder of the
First Mortgage Bonds on each Additional Interest Payment Date). The amount of
Additional Interest for each Registrable Note will be determined by multiplying
the applicable rate of Additional Interest by the aggregate principal amount of
such Registrable Note outstanding on the Additional Interest Payment Date
following such Registration Default in the case of the first such payment of
Additional Interest with respect to a Registration Default (and thereafter at
the next succeeding Additional Interest Payment Date until the cure of such
Registration Default), and multiplying the product of the foregoing by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
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year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder, the Issuers
shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3 hereof,
and use their reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers shall furnish to and afford the Holders
of the Registrable Notes covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel (if
requested by any such person) and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto (in each case, to the extent such documents have not been
filed with the Commission, at least two business days prior to the date of
filing of such Registration Statements)) proposed to be filed (in each
case at least five Business Days prior to such filing). The Issuers shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement, or
any such Participating Broker-Dealer, as the case may be, their counsel,
or the managing underwriters, if any, shall reasonably object in writing.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) promulgated under the Securities
Act; and comply with the provisions, applicable to the Issuers, of the
Securities Act and the Exchange Act with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer covered by any
such Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended or supplemented.
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(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom the Company has received written notice that such Broker-Dealer will
be a Participating Broker-Dealer in the applicable Exchange Offer, notify
the selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel (if such counsel is known
to the Issuers) and the managing underwriters, if any, as promptly as
possible, and, if requested by any such Person, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Issuers, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when
a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes in a Shelf Registration,
the representations and warranties of the Issuers contained in any
agreement (including any underwriting agreement) contemplated by Section
5(m) hereof cease to be true and correct in all material respects, (iv) of
the receipt by any of the Issuers of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange
Notes for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of
any event, the existence of any condition or any information becoming
known to any Issuer that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to
such Registration Statement, Prospectus or documents so that, in the case
of the Registration Statement, it will not contain any 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 not misleading, and
that in the case of the Prospectus, it will not contain any 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, and
(vi) of the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their reasonable
best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes, as the case may be, for sale in any jurisdiction, and, if
any such order is issued,
-12-
to use their reasonable best efforts to obtain the withdrawal of any such
order at the earliest practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if requested by the
managing underwriter or underwriters (if any), the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or any Participating Broker-Dealer, as the case may
be, (i) promptly incorporate in such Registration Statement or Prospectus
a prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders or any
Participating Broker-Dealer, as the case may be (based upon advice of
counsel), determine is reasonably required to be included therein and (ii)
make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the
Issuers shall not be required to take any action hereunder that would, in
the written opinion of counsel to the Issuers, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, who so requests, their counsel (if requested by any such
person) and each managing underwriter, if any, at the sole expense of the
Issuers, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, their respective counsel (if requested) and the
underwriters, if any, at the sole expense of the Issuers, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request;
and, subject to the last paragraph of this Section 5, the Issuers hereby
consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
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(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their reasonable
best efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, the managing underwriter or underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Notes or Exchange Notes, as the case may be, for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably
request; provided, however, that where Exchange Notes or Registrable Notes
are offered other than through an underwritten offering, the Issuers agree
to cause the Issuers' counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Exchange Notes or Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer shall
be required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would subject
it to general service of process in any such jurisdiction where it is not
then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or selling
Holders may request at least two Business Days prior to any sale of such
Registrable Notes.
(j) Use their reasonable best efforts to cause the Registrable
Notes or Exchange Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes or Exchange Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuers will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting
of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare
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and (subject to Section 5(a) and the penultimate paragraph of this Section
5) file with the Commission, at the sole expense of the Issuers, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite
or facilitate the registration or the disposition of such Registrable
Notes and, whether or not such offering is an underwritten offering, (i)
make such representations and warranties to the underwriter or
underwriters (and to any Holder that has advised the Company that such
Holder may have a "due diligence" defense under Section 11 of the
Securities Act), and covenants with, the underwriters with respect to the
business of the Issuers and their subsidiaries (including any acquired
business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made
by issuers to underwriters in underwritten offerings of debt securities
similar to the Notes, and confirm the same in writing if and when
requested; (ii) use their reasonable best efforts to obtain the written
opinions of counsel to the Issuers and written updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters (and to any Holder that has
advised the Company that such Holder may have a "due diligence" defense
under Section 11 of the Securities Act) covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) use their reasonable best efforts to obtain "cold
comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Issuers (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 or incorporated by reference in the Registration Statement),
addressed to each of the underwriters (and to any Holder that has advised
the Company that such Holder may have a "due diligence" defense under
Section 11 of the Securities Act), such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less
-15-
favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement and the managing underwriter or underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section;
provided that the Issuers shall not be required to provide indemnification
to any underwriter selected in accordance with the provisions of Section 9
hereof with respect to information relating to such underwriter furnished
in writing to the Company by or on behalf of such underwriter expressly
for inclusion in such Registration Statement. The above shall be done at
each closing under such underwriting agreement, or as and to the extent
required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Company and
its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement and Prospectus. Each Inspector shall agree in writing that it
will keep the Records confidential and that it will not disclose, or use
in connection with any market transactions in violation of any applicable
securities laws, any Records that the Company determines, in good faith,
to be confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration Statement
or Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is necessary or advisable in the opinion of
counsel for an Inspector in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iv) the
information in such Records has been made generally available to the
public; provided, however, that (i) each Inspector shall agree to use
reasonable best efforts to provide notice to the Company of the potential
disclosure of any information by such Inspector pursuant to clause (i),
(ii) or (iii) of this sentence to permit the Issuers to obtain a
protective order (or waive the provisions of this paragraph (n)) and (ii)
each such Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the
extent such action is otherwise not inconsistent with, an impairment of or
in derogation of the rights and interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a)
-16-
hereof to be qualified under the TIA not later than the effective date of
the Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable Notes or
Exchange Notes, as applicable, to effect such changes to such indenture as
may be required for such indenture to be so qualified in accordance with
the terms of the TIA; and execute, and use their reasonable best efforts
to cause such trustee to execute, all documents as 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.
(p) Comply in all material respects with all applicable rules and
regulations of the Commission and make generally available to the
Company's securityholders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Notes or Exchange Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods consistent with the requirements of Rule
158.
(q) Upon the request of a Holder, upon consummation of the
Exchange Offer or a Private Exchange, use their reasonable best efforts to
obtain an opinion of counsel to the Issuers, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Notes or Private
Exchange Notes, as the case may be, and the related indenture constitute
legal, valid and binding obligations of the Issuers, enforceable against
the Issuers in accordance with its respective terms, subject to customary
exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be,
xxxx, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; provided that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the NASD.
(t) Use their reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
-17-
The Company may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Company
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in the event of such an
exclusion, the Issuers shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make any
information previously furnished to the Company by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company or the Guarantors, then
such Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such Holder, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company or the
Guarantors, or (ii) in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Holder in any amendment or
supplement to the applicable Registration Statement filed or prepared subsequent
to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon the Company providing notice to such Holder or Participating
Broker-Dealer, as the case may be, (x) of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v) hereof, or (y)
that the Board of Directors of the Company (the "Board of Directors") has
resolved that the Company has a bona fide business purpose for doing so, then,
upon providing such notice (which shall refer to the penultimate paragraph of
this Section 5), the Issuers may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration (if not then
filed or effective, as applicable) and shall not be required to maintain the
effectiveness thereof or amend or supplement the Exchange Offer Registration
Statement or the Shelf Registration, in all cases, for a period (a "Delay
Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuers'
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Company notifies
the Holders of such good faith determination. There shall not be more than 60
days of Delay Periods during any 12-month period. The maximum length of the
Applicable Period set forth in Section 2(b) shall be extended by a number of
days equal to the number of days during any Delay Period. Any Delay Period will
not alter the obligations of the Issuers to pay Additional Interest under the
circumstances set forth in Section 4 hereof.
-18-
Each Holder or Participating Broker-Dealer, by its acceptance of any
Registrable Note, agrees that during any Delay Period, each Holder or
Participating Broker-Dealer will discontinue disposition of such Notes or
Exchange Notes covered by such Registration Statement or Prospectus or Exchange
Notes to be sold by such Holder or Participating Broker-Dealer, as the case may
be.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or the Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Notes or Exchange Notes and determination
of the eligibility of the Registrable Notes or Exchange Notes for investment
under the laws of such jurisdictions (x) where the holders of Registrable Notes
are located, in the case of an Exchange Offer, or (y) as provided in Section
5(h) hereof, in the case of a Shelf Registration or in the case of Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or in
respect of Exchange Notes to be sold by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuers and
the reasonable fees and disbursements of one special counsel for all of the
sellers of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof) selected by the Holders of a majority in aggregate principal
amount of Notes, Exchange Notes and Private Exchange Notes being registered and
reasonably satisfactory to the Issuers, (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(m)(iii) hereof
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) Securities
Act liability insurance, if the Issuers desire such insurance, (vii) fees and
expenses of all other Persons retained by any of the Issuers, (viii) internal
expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Company performing legal or accounting
duties), (ix) the expense of any annual audit, (x) the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable, (xi) any required fees and expenses incurred in
connection with any filing required to be made with the NASD and (xii) the
expenses relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, indentures and any other documents
necessary in order to comply with this Agreement. Notwithstanding the foregoing
or anything to the contrary, each Holder shall pay all underwriting discounts
and commissions of any underwriters with respect to any Registrable Notes sold
by or on behalf of it.
-19-
Section 7. Indemnification
(a) The Issuers, jointly and severally, agree to indemnify and
hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, each Person,
if any, who controls any such Person within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, the agents, employees,
officers and directors of each Holder and each such Participating Broker-Dealer
and the agents, partners, members, employees, officers, managers and directors
of any such controlling Person (each, a "Participant") from and against any and
all losses, liabilities, claims, damages and expenses whatsoever (including, but
not limited to, reasonable attorneys' fees and any and all reasonable expenses
whatsoever actually incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all reasonable amounts paid in settlement of any claim or litigation)
(collectively, "Losses") to which they or any of them may become subject under
the Securities Act, the Exchange Act or otherwise insofar as such Losses (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 any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, or caused by, arising out of or based upon 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 the
Prospectus, in the light of the circumstances under which they were made, not
misleading, provided that (i) the foregoing indemnity shall not be available to
any Participant insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the
Company in writing by or on behalf of such Participant expressly for use
therein, and (ii) the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Participant from whom the
Person asserting such Losses purchased Registrable Notes if (x) it is
established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such amendment or
supplement was furnished to such Participant prior to the written confirmation
of such sale) to such Person with or prior to the written confirmation of such
sale, if required by applicable law, and (y) the untrue statement or omission or
alleged untrue statement or omission was completely corrected in the Prospectus
(as amended or supplemented if amended or supplemented as aforesaid) and such
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission that was the subject matter of the related
proceeding. This indemnity agreement will be in addition to any liability that
the Issuers may otherwise have, including, but not limited to, liability under
this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless each Issuer, each Person, if any, who controls any
Issuer within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, and each of their respective agents, partners, members,
employees, officers and members of the board of directors from and against any
Losses to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (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 any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be
-20-
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, in each case to the extent, but only to the extent, that any such
Loss arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information relating to such Participant furnished in writing to
the Company by or on behalf of such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the reasonable fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably
acceptable to the Company and any such separate firm for the Issuers, their
affiliates, officers, directors, representatives, employees and agents and such
control Person of such Issuers shall be designated in writing by such Issuers
and shall be reasonably acceptable to the Holders. An indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent, which consent may not be unreasonably withheld. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by paragraph (a) or (b) of this Section 7, then the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying
-21-
party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 45 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement (x)
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding and (y) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party for any Losses referred to therein, or
is insufficient to hold harmless a party indemnified under this Section 7 for
any Losses referred to therein, each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such aggregate
Losses (i) in such proportion as is appropriate to reflect the relative benefits
received by each indemnifying party, on the one hand, and each indemnified
party, on the other hand, from the sale of the Notes to the Initial Purchaser or
the resale of the Registrable Notes by such Holder, as applicable, or (ii) if
such allocation 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 each indemnified party, on the one hand,
and each indemnifying party, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers, on the one hand, and each Participant, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the sale of
the Notes to the Initial Purchaser (net of discounts and commissions but before
deducting expenses) received by the Issuers are to (y) the total net profit
received by such Participant in connection with the sale of the Registrable
Notes. The relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers or such Participant and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this
-22-
Section 7 or otherwise, except to the extent that it has been prejudiced
in any material respect by such failure; provided, however, that no additional
notice shall be required with respect to any action for which notice has been
given under this Section 7 for purposes of indemnification. Anything in this
section to the contrary notwithstanding, no party shall be liable for
contribution with respect to any action or claim settled without its written
consent, provided, however, that such written consent was not unreasonably
withheld.
Section 8. Rules 144 and 144A
The Issuers covenant that they will file the reports required, if
any, to be filed by them under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuers are not required to file such reports, they will,
upon the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuers further covenant that for so long as any
Registrable Notes remain outstanding they will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the
date hereof, and shall not, after the date of this Agreement, enter into any
agreement with respect to any of their securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements. The Issuers have
not entered and will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
-23-
(b) Adjustments Affecting Registrable Notes. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given except pursuant to a written
agreement duly signed and delivered by (I) the Company (on behalf of all
Issuers) and (II)(A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes and (B) in
circumstances that would adversely affect the Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(c) may not be amended,
modified or supplemented except pursuant to a written agreement duly signed and
delivered by the Issuers and each Holder and each Participating Broker-Dealer
(including any Person who was a Holder or Participating Broker-Dealer of
Registrable Notes or Exchange Notes, as the case may be, disposed of pursuant to
any Registration Statement) affected by any such amendment, modification, waiver
or supplement. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of Registrable Notes may
be given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to any Issuer, to it
c/o Ispat Inland ULC
0000 Xxxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
-24-
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: J. Xxxxx Xxxxxxxx, Esq.
(iii) if to the Initial Purchaser, at the address as follows:
UBS Securities LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax number: (000) 000-0000
Attention: High Yield Syndicate Department
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, 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 and in the manner specified in such Indenture.
(e) Guarantors. So long as any Registrable Notes remain
outstanding, the Issuers shall cause each Person that becomes a guarantor of the
Notes under the Indenture to execute and deliver a counterpart to this Agreement
which subjects such Person to the provisions of this Agreement as a Guarantor.
Each of the Guarantors agrees to join the Issuers in all of their undertakings
hereunder to effect the Exchange Offer for the Exchange Notes and the filing of
any Shelf Registration required hereunder.
(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
hereto, the Holders and the Participating Broker-Dealers; 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 holds Registrable Notes.
(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.
-25-
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Securities Held by the Issuers or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuers or any of
their affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
(n) Taxes. Whenever in this Agreement there is mentioned, in any
context, the payment of amounts under or with respect to any of the Notes, such
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent the holder of the notes is entitled to payment of Additional
Amounts pursuant to the Indenture.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
ISPAT INLAND ULC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ISPAT INTERNATIONAL N.V.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
ISPAT INLAND INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President,
Commercial and Chief Financial
Officer
ISPAT INLAND, L.P.
By: /s/ Xxxxxxx XxXxxxx
----------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Chairman of 0000-0000 Xxxxxx,
Inc., General Partner
3019693 NOVA SCOTIA U.L.C.
By: /s/ Xxxxxxx XxXxxxx
----------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Chairman
ISPAT INLAND FINANCE, LLC
By: /s/ Xxxxxx X. XxXxx
----------------------------------------
Name: Xxxxxx X. XxXxx
Title: Manager
XXXXXXX TRUCKING COMPANY, INC.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Secretary
INCOAL COMPANY
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Secretary
ISPAT INLAND MINING COMPANY
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Secretary
ISPAT INLAND SERVICE CORP.
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Secretary
UBS SECURITIES LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director, Head of HYLCM
By: /s/ Xxxxxxx X. Xxxxxxx XX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx XX
Title: Executive Director High Yield
Capital Markets
