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EXHIBIT 4.3
THE SPORTS CLUB COMPANY, INC.
$100,000,000 11 3/8% Senior Secured Notes due 2006
REGISTRATION RIGHTS AGREEMENT
April 1, 1999
XXXXXXXXX & COMPANY, INC.
CIBC OPPENHEIMER CORP.
c/x XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The Sports Club Company, Inc., a Delaware corporation (the
"Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. and CIBC
Xxxxxxxxxxx Corp. (the "Purchasers"), upon the terms set forth in a purchase
agreement, dated as of March 29, 1999 (the "Purchase Agreement"), $100,000,000
aggregate principal amount of its 11 3/8% Senior Secured Notes due 2006,
originally issued under the Indenture, including the guarantees endorsed thereon
(the "Notes"). As an inducement to the Purchasers to enter into the Purchase
Agreement, the Company and each of the guarantors (the "Guarantors") signatory
to the Purchase Agreement agree with the Purchasers, for the benefit of the
holders of the Securities (defined below) (including, without limitation, the
Purchasers), 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 terms shall have the following meanings:
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Advice: See Section 5.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2(f).
Business Days: Any day other than (i) Saturday or Sunday, or (ii)
a day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to be closed.
Closing Date: April 1, 1999.
Effectiveness Date: The 120th day following the Closing Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(a).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: 11_% Senior Secured Notes due 2006, of the
Company, including the guarantees endorsed thereon, identical in all respects to
the Notes, except for references to series and restrictive legends.
Filing Date: The 60th day following the Closing Date.
Holder: Each holder of Registrable Securities.
Indenture: The Indenture, dated the date hereof, among the
Company, the Guarantors and State Street Bank and Trust Company, 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 Shelf Registration: See Section 3(a).
Losses: See Section 7(a).
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NASD: The National Association of Securities Dealers, Inc.
Participating Broker-Dealer: See Section 2(f).
Person: An individual, trustee, corporation, partnership, joint
stock company, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof, union, business association,
firm or other entity.
Private Exchange: See Section 2(g).
Private Exchange Securities: See Section 2(g).
Prospectus: 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 promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities covered by such Registration
Statement, 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.
Registrable Securities: (i) Notes, (ii) Private Exchange
Securities and (iii) Exchange Securities received in the Exchange Offer that may
not be sold without restriction under federal or state securities law.
Registration Statement: Any registration statement of the Company
that covers any of the Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 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 SEC.
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Rule 144A: Rule 144A 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 SEC.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(i).
Shelf Registration: The Initial Shelf Registration and any
Subsequent Shelf Registration.
Special Counsel: Counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
Subsequent Shelf Registration: See Section 3.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if any, the trustee
under any indenture subsequently entered into by the Company and governing the
Exchange Securities or the Private Exchange Securities.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Weekly Liquidated Damages Amount: means, with respect to any
Event, an amount per week per $1,000 principal amount of Registrable Securities
equal to (i) $.05 for the first 90-day period immediately following the
applicable Event Date, (ii) $.10 for the second 90-day period immediately
following the
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applicable Event Date, (iii) $.15 for the third 90-day period immediately
following the applicable Event Date, and (iv) $.20 thereafter.
2. Exchange Offer
(a) The Company and the Guarantors shall (i) prepare and file
with the SEC promptly after the date hereof, but in no event later than the
Filing Date, a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with respect to a
proposed offer (the "Exchange Offer") to the Holders to issue and deliver to
such Holders, in exchange for the Notes, a like aggregate principal amount of
Exchange Securities, (ii) use their best efforts to cause the Exchange Offer
Registration Statement to become effective as promptly as practicable after the
filing thereof, but in no event later than the Effectiveness Date, (iii) use
their best efforts to keep the Exchange Offer Registration Statement effective
until the consummation of the Exchange Offer pursuant to its terms, and (iv)
unless the Exchange Offer would not be permitted by a policy of the SEC,
commence the Exchange Offer and use their best efforts to issue, on or prior to
30 business days after the date on which the Exchange Offer Registration
Statement is declared effective, Exchange Securities in exchange for all Notes
tendered prior thereto in the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the staff of the SEC.
(b) The Exchange Securities shall be issued under, and entitled
to the benefits of, the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA).
(c) In connection with the Exchange Offer, the Company and the
Guarantors 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 that is an exhibit to the Exchange Offer Registration
Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
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(iii) utilize the services of a depository for the
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(iv) 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
(v) otherwise comply with all laws applicable to the
Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
the Company and the Guarantors shall:
(i) accept for exchange all Notes validly tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Notes, Exchange Securities equal in aggregate
principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange
Security will accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the date of original issue of the Notes.
(f) The Company and the Guarantors shall include within the
Prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," containing a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by
such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such
"Plan of Distribution" section shall also allow the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including (without limitation) all Participating Brokers-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Securities. The Company shall use its best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
Prospectus so that it may be lawfully
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delivered by all Persons subject to the prospectus delivery requirement of the
Securities Act for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Securities (the "Applicable
Period").
(g) If, prior to consummation of the Exchange Offer, any
Purchaser holds any Notes acquired by it and having the status as an unsold
allotment in the initial distribution, the Company shall, upon the request of
such Purchaser, simultaneously with the delivery of the Exchange Securities in
the Exchange Offer, issue (pursuant to the same indenture as the Exchange
Securities) and deliver to such Purchaser, in exchange for the Notes held by
such Purchaser (the "Private Exchange"), a like principal amount of debt
securities of the Company that are identical to the Exchange Securities (the
"Private Exchange Securities"), except that such Securities shall bear
appropriate transfer restrictions. The Company shall use its reasonable best
efforts to insure that the Private Exchange Securities shall bear the same CUSIP
number as the Exchange Securities.
(h) The Company may require each Holder participating in the
Exchange Offer to represent to the Company that, at the time of the consummation
of the Exchange Offer, (i) any Exchange Securities received by such Holder in
the Exchange Offer will be acquired in the ordinary course of its business, (ii)
such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities within the meaning of
the Securities Act or resale of the Exchange Securities in violation of the
Securities Act, (iii) if such Holder is not a broker-dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities, (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, that it will deliver a
prospectus, as required by law, in connection with any resale of such Exchange
Securities, and (v) if such Holder is an affiliate of the Company, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act applicable to it.
(i) If (i) prior to the consummation of the Exchange Offer,
either the Company or the Holders of a majority in aggregate principal amount of
Registrable Securities determines in its or their reasonable judgment that (A)
the Exchange Securities would not, upon receipt, be tradeable by the Holders
thereof without restriction under the Securities Act and the Exchange Act and
without material restrictions under applicable Blue Sky or state securities
laws, or (B) the interests of the Holders under this Agreement, taken as a
whole, would be materially adversely affected by the consummation of the
Exchange Offer, (ii) applicable interpretations of the staff of the SEC would
not permit the consummation of the
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Exchange Offer prior to the Effectiveness Date, (iii) subsequent to the
consummation of the Private Exchange, either Purchaser so requests, (iv) the
Exchange Offer is not consummated within 210 days of the Closing Date for any
reason or (v) in the case of any Holder not permitted to participate in the
Exchange Offer or of any Holder participating in the Exchange Offer that
receives Exchange Securities that may not be sold without restriction under
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company within the meaning of the Securities Act)
and, in either case contemplated by this clause (v), such Holder notifies the
Company within six months of consummation of the Exchange Offer, then the
Company shall promptly deliver to the Holders (or in the case of any occurrence
of the event described in clause (v) hereof, to any such Holder) and the Trustee
notice thereof (the "Shelf Notice") and shall as promptly as possible thereafter
file an Initial Shelf Registration pursuant to Section 3.
3 Shelf Registration
If a Shelf Notice is required to be delivered pursuant to Section
2(i)(i), (ii), (iii) or (iv), then this Section 3 shall apply to all Securities.
Otherwise, upon consummation of the Exchange Offer in accordance with Section 2,
the provisions of this Section 3 shall apply solely with respect to (i) Notes
held by any Holder thereof not permitted to participate in the Exchange Offer
and (ii) Exchange Securities that are not freely tradeable as contemplated by
Section 2(i)(v) hereof.
(a) Initial Shelf Registration. The Company and the Guarantors
shall prepare and file with the SEC a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Securities (the "Initial Shelf Registration"). If the Company and
the Guarantors have not yet filed an Exchange Offer, the Company and the
Guarantors shall file with the SEC the Initial Shelf Registration on or prior to
the Filing Date. Otherwise, the Company and the Guarantors shall use their best
efforts to file the Initial Shelf Registration within 20 days of the delivery of
the Shelf Notice or as promptly as possible following the request of the
Purchasers. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Securities for
resale by such Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company and the
Guarantors shall (i) not permit any securities other than the Registrable
Securities to be included in any Shelf Registration, and (ii) use their best
efforts to cause the Initial Shelf Registration to be declared effective under
the Securities Act as promptly as practicable after the filing thereof and to
keep the Initial Shelf Registration continuously effective under the Securities
Act until the date that is 24 months after being declared effective (subject to
extension pursuant to
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the last paragraph of Section 6 hereof) (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Securities covered by the Initial
Shelf Registration have been sold or (ii) a Subsequent Shelf Registration
covering all of the Registrable Securities has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If any Shelf Registration ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the Registrable Securities registered
thereunder), the Company and the Guarantors shall use their best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of effectiveness amend
the Shelf Registration in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration") required to be registered
pursuant to this Section 3. If a Subsequent Shelf Registration is filed, the
Company and the Guarantors shall use their best efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as practicable after such
filing and to keep such Subsequent Shelf Registration continuously effective for
a period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration, and any
Subsequent Shelf Registration, was previously effective.
4 Liquidated Damages.
(a) The Company and the Guarantors acknowledge and agree that the
Holders will suffer damages, and that it would not be feasible to ascertain the
extent of such damages with precision, if the Company and the Guarantors fail to
fulfill their obligations hereunder. Accordingly, in the event of such failure,
the Company and the Guarantors jointly and severally agree to pay liquidated
damages to each Holder under the circumstances and to the extent set forth
below:
(i) if neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration has been filed with the SEC on or prior to
the Filing Date; or
(ii) if neither the Exchange Offer Registration Statement
nor the Initial Shelf Registration is declared effective by the SEC on or prior
to the Effectiveness Date; or
(iii)if the Company has not exchanged Exchange Securities
for all Notes validly tendered in accordance with the terms of the Exchange
Offer within
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30 days after the date on which an Exchange Offer Registration Statement is
declared effective by the SEC; or
(iv) if a Shelf Registration is filed and declared
effective by the SEC but thereafter ceases to be effective without being
succeeded within 30 days by a Subsequent Shelf Registration filed and declared
effective
(each of the foregoing an "Event," and the date on which the Event occurs being
referred to herein as an "Event Date").
Upon the occurrence of any Event, the Company shall pay, or cause
to be paid (and the Guarantors hereby guarantee the payment of), in addition to
amounts otherwise due under the Indenture and the Registrable Securities, as
liquidated damages, and not as a penalty, to each Holder for each weekly period
beginning on the Event Date an amount equal to the Weekly Liquidated Damages
Amount per $1,000 principal amount of Registrable Securities held by such
Holder; provided, that such liquidated damages will, in each case, cease to
accrue (subject to the occurrence of another Event) on the date on which all
Events have been cured. An Event under clause (i) above shall be cured on the
date that either the Exchange Offer Registration Statement or the Initial Shelf
Registration is filed with the SEC; an Event under clause (ii) above shall be
cured on the date that either the Exchange Offer Registration Statement or the
Initial Shelf Registration is declared effective by the SEC; an Event under
clause (iii) above shall be cured on the earlier of the date (A) the Exchange
Offer is consummated with respect to all Notes validly tendered or (B) the
Company delivers a Shelf Notice to the Holders; and an Event under clause (iv)
above shall be cured on the earlier of (A) the date on which the applicable
Shelf Registration is no longer subject to an order suspending the effectiveness
thereof or proceedings relating thereto or (B) a new Subsequent Shelf
Registration is declared effective.
(b) The Company shall notify the Trustee within five Business
Days after each Event Date. The Company shall pay the liquidated damages due on
the Registrable Securities by depositing with the Trustee, in trust, for the
benefit of the Holders thereof, by 12:00 noon, New York City time, on or before
the applicable semi-annual interest payment date for the Registrable Securities,
immediately available funds in sums sufficient to pay the liquidated damages
then due. The liquidated damages amount due shall be payable on each interest
payment date to the record Holder entitled to receive the interest payment to be
made on such date as set forth in the Indenture.
5 Registration Procedures
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In connection with the registration of any Securities pursuant to
Sections 2 or 3 hereof, each of the Company and each Guarantor shall effect such
registrations to permit the sale of such Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company and each Guarantor shall:
(a) Prepare and file with the SEC, within the periods specified
in Section 2 or 3 hereof, a Registration Statement or Registration Statements as
prescribed by Section 2 or 3, and use its best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, that, if (i) such filing is pursuant to Section 3 or (ii) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company and the Guarantors shall, if
requested, furnish to and afford the Holders of the Securities covered by such
Registration Statement, their Special Counsel, each Participating Broker-Dealer,
the managing underwriters, if any, and their counsel a reasonable opportunity to
review and make available for inspection by such Persons copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed, such financial and other
information and books and records of the Company and the Guarantors, and cause
the officers, directors and employees of the Company and the Guarantors, Company
counsel and independent certified public accountants of the Company, to respond
to such inquiries, as shall be necessary, in the opinion of respective counsel
to such Holders, Participating Broker-Dealer and underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act. The Company
may require each Holder to agree to keep confidential any non-public information
relating to the Company received by such Holder and not disclose such
information (other than to an Affiliate or prospective purchaser who agrees to
respect the confidentiality provisions of this Section 5(a)) until such
information has been made generally available to the public unless the release
of such information is required by law or necessary to respond to inquiries of
regulatory authorities (including the National Association of Insurance
Commissioners, or similar organizations or their successors); provided, that if
any Holder is required to disclose any such non-public information, it will
notify the Company of such proposed disclosure as soon as reasonably practicable
so that the Company may seek a protective order with respect to such non-public
information. Neither the Company nor any Guarantor shall file any Registration
Statement or Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to review prior to
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the filing of such document, if the Holders of a majority in aggregate principal
amount of the Registrable Securities covered by such Registration Statement,
their Special Counsel, any Participating Broker-Dealer or the managing
underwriters, if any, or their counsel shall reasonably object.
(b) Provide an indenture trustee for the Registrable Securities
or the Exchange Securities, as the case may be, and cause the Indenture (or
other indenture relating to the Registrable Securities) to be qualified under
the TIA not later than the effective date of the first Registration Statement;
and in connection therewith, 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 its 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 SEC to enable such indenture to be so
qualified in a timely manner.
(c) Prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the time periods
required hereby; 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) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act and the Exchange Act applicable thereto with respect to the
disposition of all securities covered by such Registration Statement, as so
amended, or in such Prospectus, as so supplemented, in accordance with the
intended methods of distribution set forth in such Registration Statement or
Prospectus as so amended.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Company's receipt, a copy of the
order of the SEC declaring such Registration Statement and any post-effective
amendment thereto effective and (ii) such reasonable number of copies of such
Registration Statement and of each amendment and supplement thereto (in each
case including any documents incorporated therein by reference and all
exhibits), (iii) such reasonable number of copies of the Prospectus included in
such Registration Statement (including each preliminary Prospectus), and such
reasonable number of copies of the final Prospectus as filed by the Company
pursuant to Rule 424(b) under the Securities Act, in conformity with the
requirements of the Securities Act, and (iv) such other documents (including any
amendments required to be filed pursuant to clause (c) of this Section) as any
such Person may reasonably request in order to facilitate the public sales of
the Registrable Securities. The Company and the Guarantors hereby consent to the
use of the Prospectus by each of the selling Holders
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of Registrable Securities 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 Securities covered by,
or the sale by Participating Broker-Dealers of the Exchange Securities pursuant
to, such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, their
Special Counsel, each Participating Broker-Dealer and the managing underwriters,
if any, promptly (but in any event within two Business Days), and confirm such
notice in writing, (i) when a Prospectus 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, (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any 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 Securities, the representations and warranties of the Company or of
any Guarantor contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) below cease to be true and correct in any material
respect, (iv) of the receipt by the Company or any Guarantor of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Securities
or the Exchange Securities to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction, or the contemplation, initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event 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 such Registration Statement, Prospectus or documents so that 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 light of the circumstances under which they were made, not
misleading, and (vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(f) Use its best efforts to register or qualify, and, if
applicable, to cooperate with the selling Holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, Securities to be included in a
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Registration Statement 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 underwriters reasonably request in
writing; and, if Securities are offered other than through an Underwritten
Offering, the Company shall cause its counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed pursuant to this
Section 5(f) at the expense of the Company; 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 necessary or advisable to enable the disposition in such
jurisdictions of the Securities covered by the applicable Registration
Statement, provided, however, that none of the Company nor the Guarantors shall
be required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified, (ii) to take action that would subject it to general
service of process in any jurisdiction where it is not so subject or (iii)
subject it to taxation in respect of doing business in any such jurisdiction
where it is not then subject.
(g) Use its 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 Securities for sale in any
jurisdiction, and, if any such order is issued, to use its best efforts to
obtain the withdrawal of any such order at the earliest possible time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, and if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Securities, (i) promptly incorporate in a Prospectus or post-effective amendment
such information as the managing underwriters, if any, or such Holders
reasonably request to be included therein required to comply with any applicable
law and (ii) make all required filings of such Prospectus or such post-effective
amendment as soon as practicable after the Company has received notification of
such matters required by Applicable Law to be incorporated in such Prospectus or
post-effective amendment.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, cooperate with the selling Holders and the managing
underwriters, if any, to facilitate
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the timely preparation and delivery of certificates representing Registrable
Securities 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
("DTC"); and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or such Holders
may request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(e)(v) or 5(e)(vi) above, as promptly as practicable prepare 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 Securities being sold thereunder
or to the Purchasers of the Exchange Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, 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 light of the
circumstances under which they were made, not misleading.
(k) Use its best efforts to cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if
appropriate, if so requested by the holders of a majority in aggregate principal
amount of Securities covered by such Registration Statement or the managing
underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable trustee with
printed certificates for the Securities in a form eligible for deposit with DTC
and (ii) use its best efforts to provide a CUSIP number for each of the
Securities.
(m) Use its best efforts to cause all Securities covered by such
Registration Statement to be listed on each securities exchange, if any, on
which similar debt securities issued by the Company are then listed.
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such other
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority in aggregate
principal amount of Registrable
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Securities being sold) in order to expedite or facilitate the registration or
the disposition of such Registrable Securities, and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with respect to the
business of the Company and its subsidiaries, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in Underwritten Offerings, and confirm the same
if and when reasonably requested; (ii) obtain opinions of counsel to the Company
and updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and the
Holders of a majority in aggregate principal amount of the Registrable
Securities being sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in Underwritten Offerings; (iii) obtain "cold comfort" letters and
updates thereof (which letters and updates (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters) from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters and each selling Holder, 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
such other matters as reasonably requested by underwriters; and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities being sold and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made pursuant
to clause (i) above and to evidence compliance with any conditions contained in
the underwriting agreement or other similar agreement entered into by the
Company.
(o) Comply with all applicable rules and regulations of the SEC
and make generally available to its security holders 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 on the first
day of the fiscal quarter following each fiscal quarter in which Registrable
Securities 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
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Company after the effective date of a Registration Statement, which earnings
statements shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and substance
reasonably satisfactory to the Purchasers), addressed to all Holders
participating in the Exchange Offer or Private Exchange, as the case may be, to
the effect that (i) the Company and the Guarantors have duly authorized,
executed and delivered the Exchange Securities or the Private Exchange
Securities, as the case may be, and the Indenture, (ii) the Exchange Securities
or the Private Exchange Securities, as the case may be, and the Indenture
constitute legal, valid and binding obligations of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance
with their respective terms, except as such enforcement may be subject to (x)
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and (y) general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law), and (iii) all obligations of the Company and the Guarantors
under the Exchange Securities or the Private Exchange Securities, as the case
may be, and the Indenture are secured by Liens on the assets securing the
obligations of the Company under the Notes.
(q) If an Exchange Offer or Private Exchange is to be
consummated, upon delivery of the Registrable Securities by such Holders to the
Company (or to such other Person as directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be, the
Company shall mark, or caused to be marked, on such Registrable Securities that
such Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, and in no
event shall such Registrable Securities be marked as paid or otherwise
satisfied.
(r) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(s) Use its best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish
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to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities as the Company may, from time to time, reasonably request in writing.
The Company may exclude from such registration the Registrable Securities of any
seller or Exchange Securities of any Participating Broker-Dealer who
unreasonably fails to furnish such information in a timely fashion.
Each Holder and each Participating Broker-Dealer agrees by
acquisition of such Registrable Securities or Exchange Securities of any
Participating Broker-Dealer that, upon receipt of written notice from the
Company of the happening of any event of the kind described in Section 5(e)(ii),
5(e)(iv), 5(e)(v) or 5(e)(vi), such Holder will forthwith discontinue
disposition (in the jurisdictions specified in a notice of a 5(e)(iv) event, and
elsewhere in a notice of a 5(e)(ii), 5(e)(v) or 5(e)(vi) event) of such
Securities covered by such Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j), or until it is advised in writing (the "Advice")
by the Company that offers or sales in a particular jurisdiction may be resumed
or that the use of the applicable Prospectus may be resumed, as the case may be,
and has received copies of any amendments or supplements thereto. If the Company
shall give such notice, each of the Effectiveness Period and the Applicable
Period shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each seller of such Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(j) or (y) the Advice.
6 Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company and the Guarantors shall be borne
by the Company and the Guarantors whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation:
(i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with
the NASD and (B) 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 Securities or Exchange Securities and determination of
the eligibility of the Registrable Securities or Exchange Securities for
investment under the laws of such jurisdictions (x) where the Holders
are located, in the case of the
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Exchange Securities, or (y) as provided in Section 5(f), in the case of
Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period);
(ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities or Exchange
Securities in a form eligible for deposit with DTC and of printing
prospectuses if the printing of prospectuses is requested by the
managing underwriters, if any, or, in respect of Registrable Securities
or Exchange Securities to be sold by a Participating Broker-Dealer
during the Applicable Period, by the Holders of a majority in aggregate
principal amount of the Registrable Securities included in any
Registration Statement or of such Exchange Securities, as the case may
be);
(iii) messenger, telephone, duplication, word processing
and delivery expenses incurred by the Company in the performance of its
obligations hereunder;
(iv) fees and disbursements of counsel for the Company;
(v) fees and disbursements of all independent certified
public accountants referred to in Section 6(n)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Schedule E to the By-laws of the NASD, but only
where the need for such a "qualified independent underwriter" arises due
to a relationship with the Company;
(vii) Securities Act liability insurance, if the Company
so desires such insurance;
(viii) fees and expenses of all other Persons retained by
the Company; internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the
Company performing legal or accounting duties); and the expense of any
annual audit; and
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(ix) rating agency fees and the fees and expenses incurred
in connection with the listing of the Securities to be registered on any
securities exchange.
(b) The Company and the Guarantors shall reimburse the Holders
for the reasonable fees and disbursements of not more than one counsel (in
addition to appropriate local counsel) chosen by the Holders of a majority in
aggregate principal amount of the Registrable Securities to be included in any
Registration Statement and other reasonable and necessary out-of-pocket expenses
of the Holders incurred in connection with the registration of the Registrable
Securities.
7 Indemnification
(a) Indemnification by the Company. The Company and each of the
Guarantors, jointly and severally, shall, without limitation as to time,
indemnify and hold harmless each Holder and each Participating Broker-Dealer,
each Person who controls each such Holder (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) and the officers,
directors, partners, employees, representatives and agents of each such Holder,
Participating Broker-Dealer and controlling person, to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, costs of preparation and reasonable attorneys'
fees) and expenses (including, without limitation, costs and expenses incurred
in connection with investigating, preparing, pursuing or defending against any
of the foregoing) (collectively, "Losses"), as incurred, directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of prospectus, or in any amendment or
supplement thereto, or in any preliminary prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such Losses are
based upon information relating to such Holder or Participating Broker-Dealer
and furnished in writing to the Company by such Holder or Participating
Broker-Dealer expressly for use therein. The Company and each of the Guarantors
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each Person who controls such
Persons (within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders or the Participating Broker-Dealer.
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(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement, Prospectus or form of prospectus,
any amendment or supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
any Registration Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without limitation
as to time, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person, if any, who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the directors, officers, agents or employees of such controlling
persons, to the fullest extent lawful, as incurred from and against all Losses
relating to, arising out of or based upon any untrue or alleged untrue statement
of a material fact contained in any Registration Statement, Prospectus or form
of prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact
is contained in or omitted from any information so furnished in writing by such
Holder to the Company expressly for use therein. In no event shall the liability
of any selling Holder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses incurred by such Holder) received by
such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "indemnified party"), such indemnified party shall promptly notify the party
or parties from which such indemnity is sought (the "indemnifying parties") in
writing; provided, that the failure to so notify the indemnifying parties shall
not relieve the indemnifying parties from any obligation or liability except to
the extent (but only to the extent) that it shall be finally determined by a
court of competent jurisdiction (which determination is not subject to appeal)
that the indemnifying parties have been prejudiced materially by such failure.
The indemnifying party shall have the right, exercisable by
giving written notice to an indemnified party, within 20 business days after
receipt of written notice from such indemnified party of such Proceeding, to
assume, at its expense, the defense of any such Proceeding, provided, that an
indemnified party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be
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at the expense of such indemnified party or parties unless: (1) the indemnifying
party has agreed to pay such fees and expenses; or (2) the indemnifying party
shall have failed promptly to assume the defense of such Proceeding or shall
have failed to employ counsel reasonably satisfactory to such indemnified party;
or (3) the named parties to any such Proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party or any
of its affiliates or controlling persons, and such indemnified party shall have
been advised by counsel that there may be one or more defenses available to such
indemnified party that are in addition to, or in conflict with, those defenses
available to the indemnifying party or such affiliate or controlling person (in
which case, if such indemnified party notifies the indemnifying parties in
writing that it elects to employ separate counsel at the expense of the
indemnifying parties, the indemnifying parties shall not have the right to
assume the defense thereof and the reasonable fees and expenses of such counsel
shall be at the expense of the indemnifying party; it being understood, however,
that, the indemnifying party shall not, in connection with any one such
Proceeding or separate but substantially similar or related Proceedings in the
same jurisdiction, arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such indemnified
party).
No indemnifying party shall be liable for any settlement of any
such Proceeding effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party jointly and severally agrees, subject to the
exceptions and limitations set forth above, to indemnify and hold harmless each
indemnified party from and against any and all Losses by reason of such
settlement or judgment. The indemnifying party shall not consent to the entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such Proceeding for
which such indemnified party would be entitled to indemnification hereunder
(whether or not any indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 7
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 7), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party, on the
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one hand, and such indemnified party, on the other hand, from the offering of
the Notes, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such statement or omission. The amount paid or payable by an
indemnified party as a result of any Losses shall be deemed to include any legal
or other fees or expenses incurred by such party in connection with any
Proceeding, to the extent such party would have been indemnified for such fees
or expenses if the indemnification provided for in Section 7(a) or 7(b) was
available to such party.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), an indemnifying party that
is a selling Holder shall not be required to contribute, in the aggregate, any
amount in excess of such Holder's Maximum Contribution Amount. A selling
Holder's "Maximum Contribution Amount" shall equal the excess of (i) the
aggregate proceeds received by such Holder pursuant to the sale of such
Registrable Securities over (ii) the aggregate amount of damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability that the indemnifying parties may
have to the indemnified parties.
8 Rule 144 and Rule 144A
Each of the Company and each Guarantor covenants that it shall
(a) file the reports required to be filed by it (if so required) under the
Securities Act and
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the Exchange Act in a timely manner and, if at any time any such Person is not
required to file such reports, it will, upon the request of any Holder, make
publicly available other information necessary to permit sales pursuant to Rule
144 and Rule 144A and (b) take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company and the Guarantors shall deliver to such Holder a
written statement as to whether they have complied with such information
requirements.
9 Underwritten Registrations
If any of the Registrable Securities 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 Securities included in such offering and be reasonably acceptable to
the Company. In such event, all commissions, fees and other compensation payable
to such bankers and/or managers selected by the Holders to manage the offering
shall be borne by the Holders.
No Holder may participate in any Underwritten Registration
hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
10 Miscellaneous
(a) Remedies. In the event of a breach by the Company or any of
the Guarantors of any of its respective obligations under this Agreement, each
Holder, in addition to being entitled to exercise all rights provided herein, in
the Indenture or, in the case of the Purchasers, in the Purchase Agreement, or
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each of the
Guarantors agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
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(b) No Inconsistent Agreements. The Company has not entered into,
as of the date hereof, and shall not enter into, after the date of this
Agreement, any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, 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 Holders
of at least a majority of the then outstanding aggregate principal amount of
Registrable Securities; provided, that Sections 5(a) and 7 shall not be amended,
modified or supplemented, and waivers or consents to departures from this
proviso may not be given, unless the Company has obtained the written consent of
each Holder affected by any such amendment modification, supplement, waiver or
consent. 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 whose securities 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 Holders of at least a majority in aggregate principal
amount of the Registrable Securities being sold by such Holders pursuant to such
Registration Statement, provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(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, certified
first-class mail, return receipt requested, next-day air courier or facsimile:
(i) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 11(d), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, telecopy number (213)
687-5600, Attention: Xxxxxxx X. Xxxxxxxx, Esq.; and
(ii) if to the Company or any of the Guarantors, initially
at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Chief Executive Officer, telecopy number (310)
479-4350, and thereafter at such other address, notice of which is given
in accordance with
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the provisions of this Section 11(d), with a copy to Kinsella, Boesch,
Xxxxxxxx and Xxxxx, LLP, 0000 Xxxxxx xx xxx Xxxxx, 0xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, telecopy number (000) 000-0000, Attention:
Xxxxxx X. Xxxxxxxx, Esq.
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; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE COMPANY AND EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY AND
EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST
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EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH OF THE COMPANY AND EACH GUARANTOR IRREVOCABLY CONSENTS,
TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN
ANY OTHER JURISDICTION.
(i) 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.
(j) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company in
respect of securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a
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defense, the prevailing party, as determined by the courts, shall be entitled to
recover reasonable attorneys' fees in addition to its costs and expenses and any
other available remedy.
(l) Securities Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than Holders deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
THE SPORTS CLUB COMPANY
By: /s/ Xxxxxxx X'Xxxxx
---------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
CANOGA AGOURA SPECTRUM CLUB INC.
IRVINE SPORTS CLUBS, LTD.
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx By: /s/ Xxxxxxx X'Xxxxx
Title: Chief Financial Officer -------------------------------
Name: Xxxxxxx X'Xxxxx
Xxxxx: Chief Financial Officer
GREEN VALLEY SPECTRUM CLUB, INC.
LA/IRVINE SPORTS CLUBS, LTD.
By: /s/ Xxxxxxx X'Xxxxx By: Sports Club, Inc. of California,
------------------------------- its General partner
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
HFA SERVICES, INC. Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx NY SPORTS CLUB, INC.
Title: Chief Financial Officer
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
XXXXXXX REALTY Title: Chief Financial Officer
By: /s/ Xxxxxxx X'Xxxxx By: /s/ Xxxxxxx X'Xxxxx
------------------------------- -------------------------------
Name: Xxxxxxx X'Xxxxx Name: Xxxxxxx X'Xxxxx
Xxxxx: Chief Financial Officer Title: Chief Financial Officer
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SCC SPORTS CLUB, INC. XXXXXXXXX REALTY AND
DEVELOPMENT COMPANY, INC.
By: /s/ Xxxxxxx X'Xxxxx
----------------------------
Name: Xxxxxxx X'Xxxxx By: /s/ Xxxxxxx X'Xxxxx
Title: Chief Financial Officer -------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
SF SPORTS CLUB, INC.
THE SPECTRUM CLUB COMPANY, INC.
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx By: /s/ Xxxxxxx X'Xxxxx
Title: Chief Financial Officer -------------------------------
Name: Xxxxxxx X'Xxxxx
Xxxxx: Chief Financial Officer
SPECTRUM CLUB ANAHEIM
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer THE SPECTRUM CLUB COMPANY,INC.
SPECTRUM LIQUIDATING CORP. By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Xxxxx: Chief Financial Officer By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
SPORTS CLUB, INC. OF CALIFORNIA
WASHINGTON D.C. SPORTS CLUB, INC.
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Xxxxx: Chief Financial Officer
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TALLA NEW YORK, INC.
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
TVE, INC.
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
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THE SPORTS CONNECTION HOLDING WASHINGTON D.C. SPORTS CLUB, INC.
COMPANY
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
By: /s/ Xxxxxxx X'Xxxxx Name: Xxxxxxx X'Xxxxx
------------------------------- Title: Chief Financial Officer
Name: Xxxxxxx X'Xxxxx
Xxxxx: Chief Financial Officer
THE SPORTSMED COMPANY, INC.
By: /s/ Xxxxxxx X'Xxxxx
-------------------------------
Name: Xxxxxxx X'Xxxxx
Title: Chief Financial Officer
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Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
CIBC XXXXXXXXXXX CORP.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title:
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