Exhibit 4.2
DIAMOND TRIUMPH AUTO GLASS, INC.
9 1/4% Senior Notes Due 2008
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 31, 1998
First Union Capital Markets
BT Alex. Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
As Initial Purchasers under the Purchase Agreement
c/o First Union Capital Markets
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
This Registration Rights Agreement (the "Agreement") is dated
as of March 31, 1998, by and among Diamond Triumph Auto Glass, Inc., a Delaware
corporation (the "Issuer"), First Union Capital Markets, a division of Wheat
First Securities, Inc., BT Alex. Xxxxx Incorporated and Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation (the "Initial Purchasers").
This Agreement is being entered into in connection with a
certain note purchase agreement, dated March 26, 1998, between the Issuer and
the Initial Purchasers (the "Purchase Agreement"), which provides for the
issuance and sale by the Issuer to the Initial Purchasers of $100,000,000
aggregate principal amount of the Issuer's 9 1/4% Senior Notes Due 2008 (the
"Notes"). In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuer has agreed to provide the registration rights set forth in
this Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchasers to purchase the Notes
under the Purchase Agreement. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933. as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Interest" has the meaning set forth in Section 4
hereto.
"Affiliate" means, with respect to any specified person, 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.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any
other day which is a legal holiday under the laws of Charlotte, North Carolina
or New York, New York or is a day on which banking institutions therein located
are authorized or required by law or other governmental action to close.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" mean the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration statement relating to the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant t to Section 2(c)(ii) hereof, (c) the Issuer's acceptance for exchange
of all Transfer Restricted Notes duly tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and (d) the delivery of Exchange Notes
by the Issuer to the registrar under the Indenture in the same aggregate
principal amount as the aggregate principal amount of Transfer Restricted Notes
validly tendered by Holders thereof pursuant to the Registered Exchange Offer.
The term "Consummation" has a meaning correlative to the foregoing.
"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 of the Issuer
substantially identical in all material respects to the Notes (except that the
Additional Interest provisions and the transfer restrictions pertaining to the
Notes will be modified or eliminated, as appropriate), to be issued under the
Indenture.
"Exchange Offer Registration Period" means the 180-day period
following the Consummation of the Registered Exchange Offer, 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 thereafter remain continuously effective for
such period.
"Exchange Offer Registration Statement" means a registration
statement of the issuer on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
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"Exchanging Dealer" means any Holder (which may include any of
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.
"Filing Date" has the meaning set forth in Section 2 hereto.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Holder" means any holder from time to time of Transfer
Restricted Notes or Exchange Notes (including any of the Initial Purchasers).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, to be dated as of the Closing Date, among the Issuer and State
Street Bank and Trust Company, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof. It shall include the provisions of the Trust Indenture Act
that are deemed to be part of the Indenture.
"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Issuer" has the meaning set forth in the preamble hereto.
"Losses" has the meaning set forth in Section 7(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Transfer Restricted 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.
"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 Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Transfer Restricted 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.
"Registered 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.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Notes (including any guarantees of each thereof) 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.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
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"Shelf Registration Period" has the meaning set forth in
Section 3(c) hereof.
"Shelf Registration Statement" means a "shelf' registration
statement of the Issuer pursuant to the provisions of Section 3 hereof, which
covers some or all of the Transfer Restricted Notes, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, 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.
"Shelf Registration Trigger Date" means the date on which the
filing of a Shelf Registration is requested or required under Section 3 hereof.
"Transfer Restricted Notes" means each Note upon original
issuance thereof and at all times subsequent thereto, each Exchange Note as to
which Section 3 (a) (ii) and Section 3 (a) (iv) apply upon original issuance and
at all times subsequent thereto, until in the case of any such Note or Exchange
Note, as the case may be, the earliest to occur of (i) the date on which such
Note has been exchanged by a person other than an Exchanging Dealer for an
Exchange Note (other than with respect to an Exchange Note as to which Section 3
(a) (ii) and Section 3 (a) (iv) apply), (ii) with respect to Exchange Notes
received by Exchanging Dealers in the Exchange Offer, the earlier to occur of
(x) the date on which such Exchange Note has been sold by such Exchanging Dealer
by means of the Prospectus contained in the Exchange Offer Registration
Statement and (y) the date on which the Exchange Offer Registration Statement
has been effective under the Act for a continuous period of 180 days following
Consummation, (iii) a Shelf Registration Statement covering such Note or
Exchange Note, as the case may be, has been declared effective by the Commission
and such Note or Exchange Note, as the case may be, has been disposed of in
accordance with such effective Shelf Registration Statement, (iv) the date on
which such Note or Exchange Note, as the case may be, is disposed of pursuant to
Rule 144 under the Act or (v) such Note or Exchange Note, as the case may be,
ceases to be outstanding for purposes of the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the trustee with respect to the Notes or
Exchange Notes, as applicable, under the Indenture.
2. Registered Exchange Offer: Resales of Exchange Notes by
Exchanging Dealers: Private Exchange. (a) The Issuer shall prepare and, not
later than the earlier to occur of (i) the date of any filing of a registration
statement by the Issuer under the Securities Act and (ii) 730 days from the date
of original issuance of the Notes (or, if such 730th day is not a Business Day,
by the first Business Day thereafter), shall file with the Commission the
Exchange Offer Registration Statement with respect to the Registered Exchange
Offer (the date of such filing hereinafter referred to as the "Filing Date").
The Issuer shall use its best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Act within 150 days
from the Filing Date (or, if such 150th day is not a Business Day, by the first
Business Day thereafter), and (ii) to Consummate the Registered Exchange Offer
within 60 Business Days from the date the Exchange Offer Registration Statement
becomes effective (or, if such 60th day is not a Business Day, by the first
Business Day thereafter).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer shall promptly commence and Consummate the Registered
Exchange Offer. The objective of such Registered Exchange Offer is to enable
each Holder electing to exchange Transfer Restricted
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Notes for Exchange Notes (assuming that such Holder (x) is not an "affiliate" of
the Issuer within the meaning of the Act, (y) is not a broker-dealer that
acquired the Transfer Restricted 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 Act
and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Issuer shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance
for not less than 30 Business Days after the date notice thereof is
mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Issuer may suspend the use of the Prospectus for a
period not to exceed 30 days in any three-month period or for three periods not
to exceed an aggregate of 90 days in any twelve-month period for valid business
reasons, to be determined by the Issuer in its sole reasonable judgment (not
including avoidance of its obligations hereunder), including, without
limitation, the acquisition or divestiture of assets, public filings with the
Commission, pending corporate developments and similar events; provided that the
Issuer promptly thereafter complies with the requirements of Section 5(k)
hereof, if applicable.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Issuer shall cause the Trustee promptly to
authenticate and deliver to each Holder Exchange Notes equal in principal amount
to the Transfer Restricted Notes of such Holder so accepted for exchange.
(f) The Initial Purchasers and the Issuer acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5 of the
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 Registered
Exchange Offer in exchange for Transfer Restricted Notes acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Issuer shall:
(i) include the information set forth in Annex A hereto on the
cover of the Prospectus forming a part 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 Registered 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
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Statement, and in Annex D hereto in the letter of transmittal delivered
pursuant to the Registered Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the 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 Registered Exchange Offer, as
contemplated by Section 5(h) below.
(g) In the event that any Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Transfer Restricted 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 such Initial Purchaser,
the Issuer shall issue and deliver to such Initial Purchaser, or to the party
purchasing Transfer Restricted Notes registered under the Shelf Registration
Statement from such Initial Purchaser, in exchange for such Transfer Restricted
Notes, a like principal amount of Exchange Notes to the extent permitted by
applicable law. The Issuer shall use its reasonable 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 Registered Exchange Offer.
3. Shelf Registration. (a) If (i) the Company is not permitted
to file the Exchange Offer Registration Statement or to Consummate the
Registered Exchange Offer because the Registered Exchange Offer is not permitted
by applicable law or Commission policy, (ii) prior to the 60th day preceding the
Filing Date (1) any Holder notifies the Issuer that due to a change in
applicable law or Commission policy it is not entitled to participate in the
Registered Exchange offer or that it may not resell Exchange Notes acquired by
it in the Registered Exchange Offer to the public without complying with the
registration and prospectus delivery requirements of the Act and the delivery of
the Prospectus contained in the Exchange Offer Registration Statement, as
appropriately amended, is not a legally available alternative or (2) any Holder
notifies the Issuer that it owns Notes (including, without limitation, Notes
held by any of the Initial Purchasers that constitute any portion of an unsold
allotment) acquired directly from the Issuer or an Affiliate of the Issuer,
(iii) the Registered Exchange Offer is not Consummated within 180 days of the
Filing Date, or (iv) in the case where the Initial Purchaser participates in the
Registered Exchange Offer or acquires Exchange Notes pursuant to Section 2(g)
hereof, the Initial Purchaser does not receive freely tradable 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 Purchaser deliver a Prospectus containing the information required by
Items 507 and/or 508 of Regulation S-K under the Act in connection with sales of
Exchange Notes acquired in exchange for such Transfer Restricted Notes shall
result in such Exchange Notes being not "freely tradable" and (y) the
requirement that an Exchanging Dealer deliver a Prospectus in connection with
sales of Exchange Notes acquired in the Registered Exchange Offer in exchange
for Transfer Restricted Notes acquired as a result of market-making activities
or other trading activities shall not result in such Exchange Notes being not
"freely tradable"), the following provisions shall apply:
(b) The Issuer shall prepare and file with the Commission a
Shelf Registration Statement prior to the later of (i) the Filing Date, (ii) if
such Shelf Registration Statement is required pursuant to Section 3 (a) (i),
(ii), or (iv), the 60th day following the Shelf Registration Trigger Date (or if
such 60th day is not a Business Day, by the first Business Day thereafter) and
(iii) if such Shelf Registration Statement is required pursuant to Section 3 (a)
(iii), the 215th day following the Filing Date (or, if such 215th day is not a
Business Day, by the first Business Day thereafter). The Issuer
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shall use its best efforts to cause the Shelf Registration Statement to be
declared effective by the Commission as promptly as possible following the
filing thereof. With respect to Exchange Notes received by any Initial Purchaser
in exchange for Notes constituting any portion of an unsold allotment, the
Issuer 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 their obligations under this paragraph (b) 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.
(c) The Issuer shall use its best efforts to keep such Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming a part thereof to be usable by Holders until the earliest of (i) the
180th day following the date on which the Shelf Registration Statement was
declared effective and (ii) such date as of which all the Transfer Restricted
Notes have been sold pursuant to the Shelf Registration Statement (in any such
case, such period being called the "Shelf Registration Period"). The Issuer
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 Transfer Restricted Notes covered thereby
not being able to offer and sell such notes during that period, unless such
action is (x) required by applicable law or (y) pursuant to Section 3(d) hereof,
and, in either case, so long as the Issuer promptly thereafter complies with the
requirements of Section 5(k) hereof, if applicable.
(d) The Issuer may suspend the use of the Prospectus for a
period not to exceed 30 days in any three-month period or for three periods not
to exceed an aggregate of 90 days in any twelve-month period for valid business
reasons, to be determined by the Issuer in its sole reasonable judgment (not
including avoidance of its obligations hereunder), including, without
limitation, the acquisition or divestiture of assets, public filings with the
Commission, pending corporate developments and similar events; provided that the
Issuer promptly thereafter complies with the requirements of Section 5(k)
hereof, if applicable.
(e) No Holder of Transfer Restricted Notes may include any of
its Transfer Restricted Notes in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Issuer in writing,
within 20 Business Days after receipt of a request therefor, such information as
the Issuer may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Notes shall be entitled to Additional Interest
pursuant to Section 4 hereof unless and until such Holder shall have used its
best efforts to provide all such reasonably requested information. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuer all information required to be disclosed in order to make
the information previously furnished to the Issuer by such Holder not
misleading.
4. Additional Interest.
(a) The parties hereto agree that the Holders of the Exchange
Notes or the Transfer Restricted Notes, as the case may be, will suffer damages
if the Issuer fails to perform its obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of such
damages. Accordingly, in the event that (i) the applicable Registration
Statement is not filed with the Commission on or prior to the date specified
herein for such filing, (ii) the applicable Registration Statement has not been
declared effective by the Commission on or prior to the date specified herein
for such effectiveness after such obligation arises, (iii) if the Exchange Offer
is
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required to be Consummated hereunder, the Exchange Offer has not been
Consummated by the Issuer within the time period set forth in Section 2(a) or
(iv) the applicable Registration Statement is filed and declared effective but
shall thereafter cease to be effective or usable in connection with the Exchange
Offer or resales of Transfer Restricted Notes during a period in which it is
required to be effective hereunder without being succeeded immediately by any
additional Registration Statement covering the Transfer Restricted Notes or the
Exchange Notes, as the case may be, which has been filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), then the interest rate on the Transfer Restricted Notes will increase
("Additional Interest"), with respect to the first 90-day period immediately
following the occurrence of such Registration Default, by 0.25% per annum and
will increase by an additional 0.25% per annum with respect to each subsequent
90-day period until such Registration Default has been cured, up to a maximum
amount of 0.50% per annum with respect to all Registration Defaults. Following
the cure of a Registration Default, the accrual of Additional Interest with
respect to such Registration Default will cease and upon the cure of all
Registration Defaults the interest rate on the Transfer Restricted Notes will
revert to the original rate.
(b) The Issuer shall notify the Trustee and paying agent under
the Indenture (or the trustee and paying agent under such other indenture under
which any Transfer Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Issuer shall pay the Additional
Interest due on the Transfer Restricted Notes by depositing with the paying
agent (which shall not be the Issuer for these purposes) for the Transfer
Restricted Notes, in trust, for the benefit of the Holders thereof, prior to
11:00 A.M. on the next interest payment date specified in the Indenture (or such
other indenture), sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date specified
by the Indenture (or such other indenture) to the record holders entitled to
receive the interest payment to be made on such date. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the applicable
Registration Default.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes a reasonable estimate of the damages
that will be suffered by holders of Transfer Restricted Notes by reason of the
happening of any Registration Default.
(d) All of the Issuer's obligations set forth in this Section
4 which are outstanding with respect to any Exchange Note or Transfer Restricted
Note at the time such note ceases to be covered by an effective Registration
Statement shall survive until such time as all such obligations with respect to
such security have been satisfied in full (notwithstanding termination of the
Agreement).
5. 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 Issuer shall furnish to each of the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use its best
efforts to reflect in each such document, when so filed with the Commission,
such comments as each of the Initial Purchasers reasonably may propose.
(b) The Issuer shall ensure that:
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(i) any Registration Statement and any amendment thereto and
any Prospectus contained therein and any amendment or supplement
thereto complies in all material respects with the Act;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading: and
(iii) any Prospectus forming pan of any Registration
Statement, including any amendment or supplement to such Prospectus,
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;
provided, that no representation or agreement is made hereby with respect to
information with respect to any of the Initial Purchasers, any Underwriter or
any Holder required to be included in any Registration Statement or Prospectus
pursuant to the Act or provided by any of the Initial Purchasers, any Holder or
any Underwriter specifically for inclusion in any Registration Statement or
Prospectus.
(c) (1) The Issuer shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of Transfer Restricted
Notes covered thereby, and, if requested by any of the Initial Purchasers or any
such Holder, confirm such advice in writing:
(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) The Issuer shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Transfer Restricted Notes
covered thereby, and, in the case of an Exchange Offer Registration Statement,
any Exchanging Dealer that has provided in writing to the Issuer a telephone or
facsimile number and address for notices, and, if requested by any of 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 Issuer of any notification with
respect to the suspension of the qualification of the Transfer
Restricted Notes included in any Registration Statement for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(iii) of the suspension of the use of the Prospectus pursuant
to Section 5(c) hereof or 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 statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the
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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 Issuer shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time and in any event shall within 30 days of
any such order (or, if such 30th day is not a Business Day, by the first
Business Day thereafter) amend the Registration Statement covering all of the
Transfer Restricted Notes (whereupon references herein to the Registration
Statement shall be deemed to include reference to such additional filing).
(e) The Issuer shall furnish to each Holder of Transfer
Restricted Notes included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
schedules, and, if the Holder so requests in writing, all exhibits thereto
(including statements and those incorporated by reference).
(f) The Issuer shall, during the Shelf Registration Period,
deliver to each Holder of Transfer Restricted Notes included within the coverage
of 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 Issuer consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Notes in connection with the offering and sale of the Transfer
Restricted Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Issuer 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 Issuer shall, during the Exchange Offer Registration
Period, deliver to each Exchanging Dealer, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Exchange
Offer Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request; and the Issuer 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(f) above.
(i) Prior to the Registered Exchange offer or any other
offering of Transfer Restricted Notes pursuant to any Registration Statement,
the Issuer shall register, qualify or cooperate with the Holders of Transfer
Restricted Notes included therein and their respective counsel in connection
with the registration or qualification of such Transfer Restricted 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 jurisdictions of the
Transfer Restricted Notes covered by such Registration Statement; provided,
however, that the Issuer will not be required to qualify generally to do
business in any jurisdiction in which it is not then so qualified, to file any
general consent to seance of process or to take any action which would subject
it to general service of process or to taxation in any such jurisdiction where
it is not then so subject.
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(j) The Issuer shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing Transfer
Restricted Notes to be sold pursuant to any Registration Statement free of any
restrictive legends and in denominations and registered in such names as Holders
may request prior to sales of Transfer Restricted Notes pursuant to such
Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 5, the Issuer 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 Transfer Restricted 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.
(l) The Issuer shall use its reasonable best efforts to cause
The Depository Trust Company ("DTC") on the first Business Day following the
effective date of any Registration Statement hereunder or as soon as possible
thereafter to remove (i) from any existing CUSIP number assigned to the Transfer
Restricted Notes or Exchange Notes, as the case may be, any designation
indicating that such notes are "restricted securities," which efforts shall
include delivery to DTC of a letter executed by the Issuer substantially in the
form of Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to the Transfer Restricted Notes or Exchange Notes, as the case may
be. In the event the Issuer is unable to cause DTC to take actions described in
the immediately preceding sentence, the Issuer shall take such actions as the
Initial Purchasers may reasonably request to provide, as soon as practicable, a
CUSIP number for the Transfer Restricted Notes or Exchange Notes registered
under such Registration Statement and to cause such CUSIP number to be assigned
to the Transfer Restricted Notes or Exchange Notes (or to the maximum aggregate
principal amount of the securities to which such number may be assigned).
(m) The Issuer shall use its 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 Act and Rule 158 promulgated thereunder.
(n) The Issuer shall cause the Indenture to be qualified under
the Trust Indenture Act in a timely manner.
(o) The Issuer may require each Holder of Transfer Restricted
Notes to be sold pursuant to any Shelf Registration Statement to furnish to the
Issuer such information regarding the Holder and the distribution of such
Transfer Restricted Notes as may, from time to time, be reasonably required by
the Act and the rules and regulations promulgated thereunder, and the
obligations of the Issuer to any Holder hereunder shall be expressly conditioned
on the compliance of such Holder with such request.
(p) The Issuer shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement (i) such information as the Majority Holders provide or, if the
Transfer Restricted Notes are being sold in an under written offering, as the
Managing Underwriters and the Majority Holders reasonably agree should be
included therein and provide to the Issuer in writing for inclusion in the Shelf
Registration Statement or Prospectus, and (ii) such information as a Holder may
provide from time to time to the Issuer in writing for inclusion in a Prospectus
or any Shelf Registration Statement concerning such Holder and
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the distribution of such Holder's Transfer Restricted Notes and, in either case,
shall make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after being notified in writing of the matters
to be incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Issuer shall enter into such agreements (including underwriting agreements) and
take all other customary and appropriate actions as may be reasonably requested
in order to expedite or facilitate the registration or the disposition of any
Transfer Restricted Notes, 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 7 (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 7).
(r) In the case of any Shelf Registration Statement, the
Issuer shall:
(i) make reasonably available for inspection by the Holders of
Transfer Restricted 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 Issuer and
any of its subsidiaries;
(ii) cause the Issuer's 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; provided, however, that any information that is
designated in writing by the Issuer, in its sole discretion, 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 (x) disclosure thereof is made in
connection with a court proceeding or required by law; provided that,
each Holder and any such Managing Underwriter, attorney, accountant or
agent will, upon learning that disclosure of such information is sought
in a court proceeding or required by law, give reasonable notice to the
Issuer with enough time to allow the Issuer to undertake appropriate
action to prevent disclosure at the Issuer's sole expense, or (y) such
information becomes available to the public generally through the
Issuer or through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Holders
of Transfer Restricted Notes registered thereunder and the Managing
Underwriters, if any, in form, substance and scope as are customarily
made by issuers to Managing Underwriters and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Issuer 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 Managing Underwriters, if any,
covering such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such Holders and Managing Underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuer (and, if
necessary, any other independent certified
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public accountants of any subsidiary of the Issuer or of any business
acquired by the Issuer for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of the Transfer Restricted
Notes covered by such Shelf Registration Statement (provided such
Holder furnishes the accountants with such representations as the
accountants customarily require in similar situations) and the Managing
Underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings;
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuer;
and
(vii) The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 5(r) 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.
(s) The Issuer shall, if and to the extent required under the
Act and/or the Trust Indenture Act and the rules and regulations thereunder in
order to register the Transfer Restricted Notes (including any guarantees
thereof) under the Act and qualify the Indenture under the Trust Indenture Act,
cause each guarantor, if any, to sign any Registration Statement and take all
other action necessary to register any such guarantees under the applicable
Registration Statement.
6. Registration Expenses. The Issuer shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3, 4 and 5 hereof (other than brokers', dealers' and underwriters' discounts and
commissions and brokers', dealers' and underwriters' counsel fees) and shall
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith.
7. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the
Issuer agrees to indemnify and hold harmless each Holder of Transfer
Restricted Notes covered thereby, the directors, officers, employees
and agents of each such Holder and each person who controls any such
Holder within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation. at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in
any amendment thereof, 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 not misleading, and agree 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, liability or action: provided, however, that the Issuer
will not be liable in any case to the extent that
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any such loss, claim, damage or liability arises out of or is based
upon (A) any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information relating to the Holder furnished to
the Issuer by or on behalf of any such Holder specifically for
inclusion therein, (B) use of a Registration Statement or the related
Prospectus during a period when a stop order has been issued in respect
of such Registration Statement or any proceedings for that purpose have
been initiated or use of a Prospectus when use of such Prospectus has
been suspended pursuant to Section 5(c); provided, further, in each
case, that Holders received prior notice of such stop order, initiation
of proceedings or suspension or (C) if the Holder is required to but
does not deliver a Prospectus or the then current Prospectus. This
indemnity agreement will be in addition to any liability which the
Issuer may otherwise have.
(ii) The Issuer also agrees to indemnify or contribute to
Losses, as provided in Section 7(d), of any Managing Underwriters of
Transfer Restricted Notes registered under a Registration Statement,
their officers and directors and each person who controls such Managing
Underwriters on substantially the same basis as that of the
indemnification of the selling Holders provided in this Section 7(a)
and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 5(q)
hereof.
(b) Each Holder of Transfer Restricted Notes covered by a
Registration Statement severally agrees to indemnify and hold harmless the
Issuer, its directors, officers, employees and agents and each person who
controls the Issuer within the meaning of either the Act or the Exchange Act to
the same extent as the foregoing indemnity from the Issuer to each such Holder,
but only with reference to written information relating to such Holder furnished
to the Issuer 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 which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying xxxxx (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying xxxxx 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 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 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, 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 which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party
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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 have authorized
the indemnified party to employ separate counsel at the expense of the
indemnifying party, provided further, that the indemnifying party shall not be
responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) representing all the indemnified
parties under paragraph (a) or paragraph (b) above. 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 7 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 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 Registration Statement which
resulted in such Losses; provided, however, that in no case shall any
Underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Transfer Restricted Notes purchased by such
Underwriter under the Registration Statement which resulted in such Losses. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Issuer shall be deemed to be equal to
the sum of (x) the aggregate principal amount of the Notes and (y) the total
amount of Additional Interest which the Issuer was not required to pay as a
result of registering the Transfer Restricted Notes covered by the Registration
Statement which resulted in such Losses. Benefits received by any Holder shall
be deemed to be equal to the value of receiving Transfer Restricted Notes
registered under the Act. Benefits received by any Underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any 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 which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Issuer within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of the Issuer shall
have the same rights to contribution as the Issuer, subject in each case to the
applicable terms and conditions of this paragraph (d).
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(e) The provisions of this Section 7 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Issuer or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive the sale by a Holder of Transfer
Restricted Notes covered by a Registration Statement.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer has not, as of the
date hereof, entered into nor shall it, on or after the date hereof, enter into
any agreement that is inconsistent with the rights granted to the Holders herein
or otherwise conflicts with the provisions hereof.
(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 Issuer has obtained the written
consent of the Majority Holders. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Transfer Restricted Notes are
being sold pursuant to a Shelf Registration Statement or whose Notes are being
exchanged pursuant to an Exchange Offer Registration Statement, as the case may
be, and which does not directly or indirectly affect the rights of other Holders
may be given by such Holders, determined on the basis of Notes being sold rather
than registered. Notwithstanding any of the foregoing, no amendment,
modification, supplement, waiver or consents to any departure from the
provisions of Section 7 hereof shall be effective as against any Holder of
Transfer Restricted Notes unless consented to in writing by such Holder.
(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 the Initial Purchasers, as follows:
First Union Capital Markets
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, XX 00000-0000
Attention: Corporate Finance Department
BT Alex. Xxxxx Incorporated
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Financial Sponsors Group
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Syndicate Department
(ii) if to any other Holder, at the most current address given
by such Holder to the Issuer in accordance with the provisions of this
Section 8(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 the Initial Purchaser; and
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(iii) if to the Issuer, as follows:
Diamond Triumph Auto Glass, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail, telex or telecopier.
The Issuer by notice to the others 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 Issuer thereto, subsequent Holders. The Issuer hereby agrees to extend the
benefits of this Agreement to any Holder 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 applicable to
agreements made and to be performed in said State, without regard to the
conflicts of law rules thereof.
(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 Issuer, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Transfer
Restricted Notes or Exchange Notes is required hereunder, Transfer Restricted
Notes or Exchange Notes held by the Issuer or its Affiliates (other than
subsequent Holders of Transfer Restricted Notes or Exchange Notes if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such notes) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
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Please confirm that the foregoing correctly sets forth the
agreement among the Issuer and the Initial Purchasers.
Very truly yours,
DIAMOND TRIUMPH AUTO GLASS, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Co-Chief Executive Officer
The foregoing Agreement is hereby
accepted as of the date first written above on
behalf of itself and the other Initial Purchasers.
FIRST UNION CAPITAL MARKETS,
A DIVISION OF WHEAT FIRST SECURITIES, INC.
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Director
