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Exhibit 4.4
EXTENDICARE HEALTH SERVICES
$200,000,000
9.35% SENIOR SUBORDINATED NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
New York, New York
December 2, 1997
NationsBanc Xxxxxxxxxx Securities, Inc.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Extendicare Health Services, a Delaware corporation (the "Company"),
proposes to issue and sell (the "Initial Placement") to NationsBanc Xxxxxxxxxx
Securities, Inc., Bear, Xxxxxxx & Co. Inc. and Xxxxx Xxxxxx Inc. (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated as of
November 25, 1997 (the "Purchase Agreement"), its 9.35% Senior Subordinated
Notes due 2007 (the "Notes"). The Notes are to be unconditionally guaranteed
on an unsecured senior subordinated basis by all existing and future United
States subsidiaries of the Company, excluding subsidiaries which are inactive
as of the date hereof, as guarantors (the "Guarantors" and, individually, each
a "Guarantor"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and purchase the Notes and in satisfaction of a condition to
your obligations under the Purchase Agreement, the Company and the Guarantors
agree with you for the benefit of the holders from time to time of the Notes
(including the Initial Purchasers) (each of the foregoing a "Holder" and
together the "Holders"), as follows:
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1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the
following meanings:
"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" means debt securities issued by the Company and
guaranteed by the Guarantors, identical in all material respects to the
Notes (except that (i) interest thereon shall accrue from the last date
on which interest was paid on the Notes or, if no such interest has been
paid, from December 2, 1997 and (ii) the interest rate step-up provisions
and the transfer restrictions pertaining to the Notes will be modified or
eliminated, as appropriate, in the Exchange Notes), to be issued under
the Indenture.
"Exchange Offer" means the proposed offer to the Holders to issue
and deliver to such Holders, in exchange for the Notes, a like principal
amount of Exchange Notes.
"Exchange Offer Registration Period" means the longer of (A) the
period until the consummation of the Exchange Offer and (B) two years
after effectiveness of the Exchange Offer Registration Statement,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration
Statement; provided, however, that in the event that all resales of
Exchange Notes (including, subject to the time periods set forth herein,
any resales by Exchanging Dealers) covered by such Exchange Offer
Registration Statement have been made, the Exchange Offer Registration
Statement need not remain continuously effective for the period set forth
in clause (B) above.
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"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Securities Act
with respect to the Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) that is a broker-dealer, electing to exchange Notes acquired
for its own account as a result of market-making activities or other
trading activities for Exchange Notes.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Guarantees" has the meaning set forth in the Purchase Agreement.
"Guarantors" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, to be dated as of the Closing Date, among the Company,
AHC Acquisition Corp. and all existing and future United States
subsidiaries of the Company, as Guarantors, and The Bank of Nova Scotia
Trust Company of New York, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the Purchase
Agreement.
"Losses" has the meaning set forth in Section 6(d) hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
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"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Notes or
the Exchange Notes covered by such Registration Statement, and all
amendments and supplements to the Prospectus, including post-effective
amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Notes or
the Exchange Notes (including the Guarantees thereon) pursuant to the
provisions of this Agreement, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto, and all
material incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof,
which covers some or all of the Notes or Exchange Notes, as applicable
(including the Guarantees thereon), on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" means the trustee with respect to the Notes or Exchange
Notes, as applicable, under the Indenture.
"underwriter" means any underwriter of Notes in connection with an
offering thereof under a Shelf Registration Statement.
2. Exchange Offer; Resales of Exchange Notes by Exchanging Dealers;
Private Exchange.
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(a) The Company and the Guarantors shall prepare and, on or prior to the
45th calendar day following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement with respect to the Exchange Offer.
The Company and the Guarantors shall use their best efforts (i) to cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act on or prior to the 90th calendar day following the Closing Date
and remain effective until the closing of the Exchange Offer and (ii) to
consummate the Exchange Offer on or prior to the 135th calendar day following
the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Guarantors shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder electing to
exchange Notes for Exchange Notes (provided that such Holder represents to the
Company and its counsel in writing that at the time of the consummation of the
Exchange Offer, such Holder (x) is not an "affiliate" of the Company within the
meaning of the Securities Act, (y) is not a broker-dealer that acquired the
Notes in a transaction other than as a part of its market-making or other
trading activities and (z) if such Holder is not a broker-dealer, acquires the
Exchange Notes in the ordinary course of such Holder's business, is not
participating in the distribution of the Exchange Notes and has no arrangements
or understandings with any person to participate in the distribution of the
Exchange Notes) to resell such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Exchange Offer, the Company shall mail to each
Holder a copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents, stating, in addition to such other disclosures as are required by
applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Note not tendered will remain outstanding and
continue to accrue interest, but will not retain any rights under this
Agreement;
(iv) that Holders electing to have a Note exchanged pursuant to the
Exchange Offer will be required to surrender such Note, together with the
enclosed letters of transmittal, to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified in
the notice prior to the close of business on the last day of acceptance
for exchange; and
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(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last day of acceptance for
exchange, by sending to the institution and at the address (located in
the Borough of Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Notes delivered for exchange and
a statement that such Holder is withdrawing his election to have such
Notes exchanged; and shall keep the Exchange Offer open for acceptance
for not less than 30 days and not more than 45 days (or longer if
required by applicable law) after the date notice thereof is mailed to
the Holders; utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York; and
comply in all respects with all applicable laws relating to the Exchange
Offer.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes duly 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 Exchange Notes equal in principal amount to the Notes of such
Holder so accepted for exchange.
(e) The Initial Purchasers, the Company and the Guarantors acknowledge
that, pursuant to interpretations by the staff of the Commission of Section 5
of the Securities Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer is required to deliver a Prospectus in connection with a
sale of any Exchange Notes received by such Exchanging Dealer pursuant to the
Exchange Offer in exchange for Notes acquired for its own account as a result
of market-making activities or other trading activities. Accordingly, the
Company and the Guarantors shall:
(i) include the information set forth in Annex A hereto on the cover
of the Exchange Offer Registration Statement, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus forming a
part of the Exchange Offer Registration Statement, and in Annex D hereto
in the letter of transmittal delivered pursuant to the Exchange Offer;
and
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(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act during the
Exchange Offer Registration Period for delivery of the prospectus
included therein by Exchanging Dealers in connection with sales of
Exchange Notes received pursuant to the Exchange Offer, as contemplated
by Section 4(h) below; provided, however, that the Company shall not be
required to maintain the effectiveness of the Exchange Offer Registration
Statement for more than 60 days following the consummation of the
Exchange Offer unless the Company has been notified in writing on or
prior to the 60th day following the consummation of the Exchange Offer by
one or more Exchanging Dealers that such Holder has received Exchange
Notes as to which it will be required to deliver a prospectus upon
resale.
(f) In the event that the Initial Purchasers determine that they are not
eligible to participate in the Exchange Offer with respect to the exchange of
Notes constituting any portion of an unsold allotment, upon the effectiveness
of the Shelf Registration Statement as contemplated by Section 3 hereof and at
the request of the Initial Purchasers, the Company shall issue and deliver to
the Initial Purchasers, or to the party purchasing Exchange Notes registered
under the Shelf Registration Statement from the Initial Purchasers, in exchange
for such Notes, a like principal amount of Exchange Notes. The Company shall
use its best efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such Exchange Notes as for Exchange Notes issued pursuant to the
Exchange Offer.
(g) The Company and the Guarantors shall use their best efforts to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that (i) the
Exchange Offer 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 or the Company to proceed with the Exchange
Offer, and no material adverse development shall have occurred in any existing
action or proceeding with respect to the Company and (iii) all governmental
approvals shall have been obtained, which approvals the Company deems necessary
for the consummation of the Exchange Offer. The Company shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right,
subject to applicable law, to contact such Holders and otherwise facilitate the
tender of Notes in the Exchange Offer.
3. Shelf Registration. If (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Exchange
Offer as contemplated by
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Section 2 hereof, or (ii) for any reason other than those specified clause (i)
above, the Exchange Offer is not consummated within 135 days of the Closing
Date unless the Exchange Offer has commenced, in which case, the Exchange Offer
is not consummated within 30 days after the date on which the Exchange Offer
was commenced, or (iii) any Initial Purchaser so requests with respect to Notes
held by it within 120 days following consummation of the Exchange Offer, or
(iv) any Holder (other than the Initial Purchasers) is not eligible to
participate in the Exchange Offer or has participated in the Exchange Offer and
has received Exchange Notes that are not freely tradeable (for reasons other
than those outlined in Section 2(b) hereof) and so notifies the Company within
60 days after such Holder first becomes aware of such restrictions or (v) in
the case where the Initial Purchasers participate in the Exchange Offer or
acquire Exchange Notes pursuant to Section 2(f) hereof, the Initial Purchasers
do not receive freely tradeable Exchange Notes in exchange for Notes
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that the Initial Purchasers
deliver a Prospectus containing the information required by Items 507 and/or
508 of Regulation S-K under the Securities Act in connection with sales of
Exchange Notes acquired in exchange for such Notes shall result in such
Exchange Notes being not "freely tradeable" and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Notes acquired in the Exchange Offer in exchange for Notes acquired as a result
of market-making activities or other trading activities shall not result in
such Exchange Notes being not "freely tradeable"), the following provisions
shall apply:
(a) The Company and the Guarantors shall, as promptly as practicable
(but in any event on or prior to 60 days after such filing obligation
arises), file with the Commission a Shelf Registration Statement relating
to the offer and sale of the Notes or the Exchange Notes, as applicable,
by the Holders from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf
Registration Statement and Rule 415 under the Securities Act, provided
that, with respect to Exchange Notes received by the Initial Purchasers
in exchange for Notes constituting any portion of an unsold allotment,
the Company and the Guarantors may, if permitted by current
interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under this paragraph (a)
with respect thereto, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(b) The Company and the Guarantors shall use their best efforts to
cause the Shelf Registration Statement to be declared effective under the
Securities Act as promptly as possible after filing such Shelf
Registration Statement pursuant to this Section 3 and to keep such Shelf
Registration Statement continuously effective in
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order to permit the Prospectus contained therein to be usable by Holders
for a period of two years from the date the Shelf Registration Statement
is declared effective by the Commission or such shorter period that will
terminate when all the Notes or Exchange Notes, as applicable, covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company shall be deemed not to have
used its best efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would
result in Holders of Notes covered thereby not being able to offer and
sell such Notes during that period, unless (i) such action is required by
applicable law, (ii) the Company complies with this Agreement or (iii)
such action is taken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as the
Company promptly thereafter complies with the requirements of Section
4(l) hereof, if applicable.
(c) No holder of Notes may include any of its Notes in any Shelf
Registration Statement pursuant to this Agreement unless and until such
holder furnishes to the Company in writing, within 20 days after receipt
of a request therefor, such information as the Company may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary prospectus included therein. No Holder shall
be entitled to remedies pursuant to Section 5 hereof unless and until
such Holder shall have provided all such reasonably requested
information. Each Holder as to which any Shelf Registration Statement is
being effected will be required to agree to furnish promptly to the
Company all information required to be disclosed in order to make
information previously furnished to the Company by such Holder not
materially misleading.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company and the Guarantors shall, within a reasonable time
prior to the filing of any Registration Statement, any Prospectus, any
amendment to a Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by reference into
a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) and make such representatives
of the Company and the Guarantors as shall be reasonably requested by the
Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel) available
for discussion of such document, and shall not at any time file or make
any amendment to the Registration Statement, any
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Prospectus or any amendment of or supplement to a Registration Statement
or a Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) shall not have previously been
advised and furnished a copy or to which the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the Holders
or their counsel) shall object, except for any amendment or supplement or
document (a copy of which has been previously furnished to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Majority Holders and their counsel)) which counsel to the
Company and the Guarantors shall advise the Company and the Guarantors,
in the form of a written legal opinion, is required in order to comply
with applicable law; each of the Initial Purchasers agrees that, if it
receives timely notice and drafts under this clause (a), it will not take
actions or make objections pursuant to this clause (a) such that the
Company and the Guarantors are unable to comply with their obligations
under Section 2.
(b) The Company and the Guarantors shall:
(i) use their reasonable best efforts to prepare any
Registration Statement and any amendment thereto and any Prospectus
contained therein and any amendment or supplement thereto to comply
in all material respects with the Securities Act and the rules and
regulations thereunder;
(ii) use their reasonable best efforts to prepare any
Registration Statement and any amendment thereto that does not,
when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and
(iii) use their reasonable best efforts to prepare any
Prospectus forming part of any Registration Statement, including
any amendment or supplement to such Prospectus, that does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(c) (1) The Company shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Notes covered
thereby, and, if requested by the Initial Purchasers or any such Holder,
confirm such advice in writing:
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(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the
Holders of Notes covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has provided in
writing to the Company a telephone or facsimile number and address for
notices, and, if requested by the Initial Purchasers or any such Holder
or Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the making
of any changes in the Registration Statement or the Prospectus so
that, as of such date, the Registration Statement or the Prospectus
does not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(d) The Company and the Guarantors shall use their reasonable best
efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible
time.
(e) The Company shall furnish to each Holder of Notes covered by any
Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto,
including financial
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statements and schedules, and, if the Holder so requests in writing, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Notes covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of Notes
in connection with the offering and sale of the Notes covered by the
Prospectus or any amendment or supplement thereto, subject to paragraph
(i) of this Section 4.
(g) The Company shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents incorporated
by reference therein and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including those incorporated by
reference).
(h) The Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging
Dealer in connection with a sale of Exchange Notes received by it
pursuant to the Exchange Offer; and the Company consents to the use of
the Prospectus or any amendment or supplement thereto by any such
Exchanging Dealer in connection with the offering and sale of the
Exchange Notes, as provided in Section 2(e) above, subject to paragraph
(i) of this Section 4.
(i) Each Holder of Notes and each Exchange Dealer agrees by its
acquisition of such Notes or Exchange Notes to be sold by such Exchange
Dealer, as the case may be, that, upon actual receipt of any notice from
the Company of the happening of any event of the kind described in
paragraphs (c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this Section 4, such
Holder will forthwith discontinue disposition of such Notes covered by
such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Exchange Dealer, as the case may be, until such Holder's
or Exchange Dealer's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(l) hereof, or until it is advised in
writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements
thereto. In the event that the Company shall give any such notice, the
Exchange Offer Registration 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 Exchange Notes
covered by such
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Registration Statement or Exchange Notes to be sold by such Exchange
Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 4(l) hereof or
(y) the advice in writing.
(j) Prior to the Exchange Offer or any other offering of Notes
pursuant to any Registration Statement, the Company and the Guarantors
shall register or qualify or cooperate with the Holders of Notes included
therein and their respective counsel in connection with the registration
or qualification of such Notes for offer and sale under the securities or
blue sky laws of such states as any such Holders reasonably request in
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such states of the Notes covered by such
Registration Statement; provided, however, that the Company and the
Guarantors will not be required to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take
any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(k) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Notes to be
sold pursuant to any Registration Statement free of any restrictive
legends and in denominations of $1,000 or an integral multiple thereof
and registered in such names as Holders may request prior to sales of
Notes pursuant to such Registration Statement.
(l) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company and the Guarantors shall
promptly prepare and file a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or any
other required document so that, as thereafter delivered to purchasers of
the Notes included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading. Notwithstanding the foregoing, the
Company shall not be required to amend or supplement a Shelf Registration
Statement, any related Prospectus or any document incorporated therein by
reference, for a period not to exceed an aggregate of 30 days in any
calendar year, if (i) an event occurs and is continuing as a result of
which the Shelf Registration would, in the Company's good faith judgment,
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and
(ii) the Company determines in their good faith judgment that the
disclosure of such event at such time would have a material adverse
effect on the business, operations, or prospects of the
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Company or the disclosure otherwise related to a pending material business
transaction that has not yet been publicly disclosed.
(m) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Notes or Exchange Notes, as the case may be, registered under such
Registration Statement, and provide the Trustee with printed certificates
for such Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(n) The Company shall use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act.
(o) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a
timely manner.
(p) The Company may require each Holder of Notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Notes as
the Company may from time to time reasonably require for inclusion in
such Registration Statement.
(q) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, and
Majority Holders reasonably agree should be included therein, and shall
make all required filings of such Prospectus supplement or post-effective
amendment promptly upon notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
(r) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or to facilitate the registration or the disposition of any Notes
included therein, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in
Section 6 (or such other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 6.
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(s) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Notes to be registered thereunder, any underwriter participating in
any disposition pursuant to such Shelf Registration Statement, and
any attorney, accountant or other agent retained by the Holders or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and any
of its subsidiaries;
(ii) cause the Company's and the Guarantors' officers,
directors and employees to supply all relevant information
reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations and make such representatives of the Company and the
Guarantors as shall be reasonably requested by the Initial
Purchasers or Managing Underwriters, if any, available for
discussion of any such Registration Statement; provided, however,
that any information that is designated in writing by the Company
or the Guarantors, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court
proceeding or required by law, provided that, the Company must be
given prior written notice of the disclosure of such information,
or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality other than as a result of a disclosure of such
information by any such Holder, underwriter, attorney, accountant
or agent;
(iii) make such representations and warranties to the Holders
of Notes registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by them;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters as are customarily
covered in opinions requested in similar underwritten offerings and
such other matters as may be reasonably requested by such Holders
and underwriters;
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(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to the underwriters, if any, and
use reasonable efforts to have such letter addressed to the selling
Holders of Notes registered thereunder (to the extent consistent
with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants (AICPA) ("SAS 72")), in
customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with similar underwritten
offerings, or if the provision of such "cold comfort" letters is
not permitted by SAS No. 72 or if requested by the Initial
Purchasers or their counsel in lieu of a "cold comfort" letter, an
agreed-upon procedures letter under Statement on Auditing Standards
No. 35 of the AICPA, covering matters requested by the Initial
Purchasers or their counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, and customarily delivered in similar
offerings, including those to evidence compliance with Section 4(l)
and with any conditions contained in the underwriting agreement or
other agreement entered into by the Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi)
of this Section 4(s) shall be performed at (A) the effectiveness of such
Shelf Registration Statement and each post-effective amendment thereto
and (B) each closing under any underwriting or similar agreement as and
to the extent required thereunder.
(t) The Company and the Guarantors shall, in the case of a Shelf
Registration, use their reasonable best efforts to cause all Notes to be
listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed if
requested by the Majority Holders, to the extent such Notes satisfy
applicable listing requirements.
(u) The Company and the Guarantors shall use their best efforts to
cause the Exchange Notes or Notes, as the case may be, to be rated by two
nationally recognized statistical rating organizations (as such term is
defined in Rule 436(g)(2) under the 1933 Act).
5. Registration Expenses; Remedies. (a) The Company and the Guarantors
shall bear all expenses incurred in connection with the performance of their
obligations under Sections 2, 3 and 4 hereof, including without limitation:
(i) all
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Commission, stock exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Notes or Notes), (iii) all
expenses of any persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, if any, (v)
all fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Company and
the Guarantors and, in the case of a Shelf Registration Statement, the
reasonable fees and disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Holders and which counsel may also be counsel
for the Initial Purchasers) and in the case of any Exchange Offer Registration
Statement, the reasonable fees and expenses of counsel to the Initial
Purchasers acting in connection therewith and (viii) the fees and disbursements
of the independent public accountants of the Company and the Guarantors,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, but excluding fees and
expenses of counsel to the underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Notes by a
Holder.
(b) The Notes provide that in the event that either (i) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 45th
calendar day following the Closing Date or (ii) the Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective on or
prior to the 135th calendar day following the Closing Date, the interest rate
borne by the Notes will be increased by .50% per annum following the first 30
days following the 45-day period referred to in clause (i) above or the first
90 days following the 135-day period referred to in clause (ii) above. Such
interest will be increased by an additional .50% per annum at the beginning of
each subsequent 30-day period in the case of clause (i) above or 90-day period
in the case of clause (ii) above; provided, however, that in no event will the
interest rate borne by the Notes be increased by more than 1.5% per annum.
Upon the filing of the Exchange Offer Registration Statement, the consummation
of the Exchange Offer or the effectiveness of a Shelf Registration Statement,
as the case may be, the interest rate borne by the Notes from the date of such
filing, consummation or effectiveness, as the case may be, will be reduced to
the original interest rate; provided, however, that, if after such reduction in
interest rate, a different event specified in clause (i) or (ii) above occurs,
the interest rate may again be increased pursuant to the foregoing provisions.
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(c) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company and the Guarantors acknowledge that any failure by the
Company and the Guarantors to comply with their respective obligations under
Sections 2 and 3 hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company's
and the Guarantors' obligations under Sections 2 and 3 hereof.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company and each Guarantor jointly and severally
agree to indemnify and hold harmless each Holder of Notes covered thereby
(including the Initial Purchasers and, with respect to any Prospectus delivery
as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging Dealer) the
directors, officers, employees and agents of such Holder and each person who
controls such Holder within the meaning of either the Securities Act or the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in such Registration Statement as originally filed or in any amendment thereof,
or in any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage or liability (or action in respect
thereof); provided, however, that the Company and each Guarantor will not be
liable in any case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any such indemnified party specifically for inclusion therein; provided
further, however, that the Company and each Guarantor will not be liable in any
case with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary Prospectus or Prospectus, or in
any amendment thereof or supplement thereto to the extent that any such loss,
claim, damage or liability (or action in respect thereof) resulted from the
fact that any indemnified party sold Notes or Exchange Notes to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus as then amended or supplemented, if the
Company had previously complied with the provisions of Section 4(c)(2) and 4(f)
or 4(h) hereof and if the untrue statement contained in or omission from such
preliminary Prospectus or Prospectus was corrected in the
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Prospectus as then amended or supplemented. This indemnity agreement will be
in addition to any liability that the Company or any Guarantor may otherwise
have.
The Company and each Guarantor also agree jointly and severally to
indemnify or contribute to Losses of, as provided in Section 6(d) hereof, any
underwriters of Notes registered under a Shelf Registration Statement, their
employees, officers, directors and agents and each person who controls such
underwriters on the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(r) hereof.
(b) Each Holder of Notes covered by a Registration Statement (including
each Initial Purchaser and, with respect to any Prospectus delivery as
contemplated by Sections 2(e) and 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless (i) the Company and each
Guarantor, (ii) each of the directors of the Company and each Guarantor, (iii)
each of the officers of the Company and the Guarantors who signs such
Registration Statement and (iv) each Person who controls the Company or any
Guarantor within the meaning of either the Securities Act or the Exchange Act
to the same extent as the foregoing indemnity from the Company and each
Guarantor to each such Holder, but only with respect to written information
furnished to the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability that any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses, and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees,
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20
costs and expenses of such separate counsel (and local counsel) if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending the same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement that resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Note or Exchange Note be responsible, in the
aggregate, for any amount in excess of the purchase discount or commission
applicable to such Note, or in the case of an Exchange Note, applicable to the
Note that was exchangeable into such Exchange Note, as set forth on the cover
page of the Final Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Notes purchased by such underwriter under the Registration Statement that
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and
the indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand,
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in connection with the statements or omissions that resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company and the Guarantors shall be deemed to be equal to the sum of (x) the
total net proceeds from the Initial Placement (before deducting expenses) as
set forth on the cover page of the Final Memorandum and (y) the total amount of
additional interest that the Company was not required to pay as a result of
registering the Notes covered by the Registration Statement that resulted in
such losses. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Final Memorandum, and benefits received by any other Holders shall
be deemed to be equal to the value of receiving Notes or Exchange Notes, as
applicable, registered under the Securities Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement that resulted in such Losses. Relative fault shall
be determined by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that did not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
or any Guarantor within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company or any Guarantor who shall have
signed the Registration Statement and each director of the Company and each
Guarantor shall have the same rights to contribution as the Company and each
Guarantor, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the
Company or any Guarantor or any of the officers, directors or controlling
persons referred to in Section 6 hereof, and will survive the sale by a Holder
of Notes covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreement. The Company and the Guarantors have not,
as of the date hereof, entered into, nor shall any of them, on or after the
date hereof, enter into, any agreement that conflicts with the rights granted
to the Holders herein or otherwise conflicts with the provisions hereof.
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22
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of Notes (or, after the consummation of any Exchange Offer in accordance
with Section 2 hereof, of Exchange Notes); provided that, with respect to any
matter that directly or indirectly affects the rights of the Initial Purchasers
hereunder, the Company shall obtain the written consent of the Initial
Purchasers. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Notes are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Notes being sold rather than registered
under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 7(c),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to NationsBanc Xxxxxxxxxx Securities, Inc.;
(ii) if to the Initial Purchasers, at NationsBank Corporate Center,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000; and
(iii) if to the Company or any Guarantor, c/o the Company at 000
Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxxxx, Vice President of Finance and Chief Financial Officer.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, on the one hand, or the Company
or any Guarantor, on the other, by notice to the other party or parties may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company or any Guarantor thereto, subsequent Holders of Notes and/or Exchange
Notes. The Company and the Guarantors hereby agree to extend the benefits of
this Agreement to any Holder of Notes and/or
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Exchange Notes and any such Holder may specifically enforce the provisions of
this Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Notes or Exchange
Notes is required hereunder, Notes or Exchange Notes, as applicable, held by
the Company or its Affiliates (other than subsequent Holders of Notes or
Exchange Notes if such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Notes or Exchange Notes) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage.
24
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Guarantors and you.
Very truly yours,
EXTENDICARE HEALTH SERVICES, INC.
By:________________________
Name:
Title:
THE GUARANTORS LISTED ON SCHEDULE I
By:________________________
Name:
Title:
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The foregoing Agreement is hereby
accepted as of the date first above written.
NATIONSBANC XXXXXXXXXX
SECURITIES, INC.
By:_____________________
Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:_____________________
Name:
Title:
XXXXX XXXXXX INC.
By:_____________________
Name:
Title:
26
Schedule I
ADULT SERVICES UNLIMITED, INC.
AHC ACQUISITION CORP.
ALTERNACARE PLUS ENTERPRISES, INC.
ARBOR HEALTH CARE COMPANY
ARBORS EAST, INC. ARBORS AT FT. XXXXX, INC.
ARBORS AT TOLEDO, INC.
BAY GERIATRIC PHARMACY, INC. COVENTRY CARE, INC.
EDGEWOOD NURSING CENTER, INC.
ELDER CREST, INC.
EXTENDICARE GREAT TRAIL, INC.
EXTENDICARE HEALTH FACILITIES, INC.
EXTENDICARE HEALTH FACILITY HOLDINGS, INC.
EXTENDICARE HOMES, INC.
EXTENDICARE OF INDIANA, INC.
FIR LANE TERRACE CONVALESCENT CENTER, INC.
HAVEN CREST, INC.
HEALTH POCONOS, INC.
HOME CARE PHARMACY, INC. OF FLORIDA
XXXXXXXX PROPERTIES, INC.
MEADOW CREST, INC.
NORTHERN HEALTH FACILITIES, INC.
OAK HILL HOME OF REST AND CARE, INC.
POLY-STAT COMPUTER APPLICATIONS, INC.
POLY-STAT SUPPLY CORPORATION
Q.D. PHARMACY, INC.
THE DRUGGIST, INC.
THE PROGRESSIVE STEP CORPORATION
UNITED PROFESSIONAL COMPANIES, INC.
UNITED PROFESSIONAL SERVICES, INC.
UNITED REHABILITATION SERVICES, INC.
27
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amend or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
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ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution."
29
ANNEX C
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting
on the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until such date all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.
30
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange Notes for
its own account in exchange for Notes, it represents that the Notes to be
exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
