EXHIBIT 10.2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of March 12, 2002
By and Among
ENTRAVISION COMMUNICATIONS CORPORATION
as Issuer,
and
UBS WARBURG LLC,
CREDIT SUISSE FIRST BOSTON CORPORATION, and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
as Initial Purchasers
8.125% Senior Subordinated Notes due 2009
TABLE OF CONTENTS
Page
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1. Definitions .............................................................. 1
2. Exchange Offer ........................................................... 4
3. Shelf Registration ....................................................... 7
4. Liquidated Damages ....................................................... 8
5. Registration Procedures .................................................. 10
6. Registration Expenses .................................................... 18
7. Indemnification .......................................................... 19
8. Rules 144 and 144A ....................................................... 22
9. Underwritten Registrations ............................................... 22
10. Miscellaneous ............................................................ 23
(a) No Inconsistent Agreements ...................................... 23
(b) Adjustments Affecting Registrable Notes ......................... 23
(c) Amendments and Waivers .......................................... 23
(d) Notices ......................................................... 23
(e) Successors and Assigns .......................................... 24
(f) Counterparts .................................................... 24
(g) Headings ........................................................ 24
(h) Governing Law ................................................... 24
(i) Severability .................................................... 25
(j) Securities Held by the Issuer or Its Affiliates ................. 25
(k) Third-Party Beneficiaries ....................................... 25
(l) Attorneys' Fees ................................................. 25
(m) Entire Agreement ................................................ 25
SIGNATURES .................................................................... S-1
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this "Agreement") is dated
as of March 12, 2002, by and between ENTRAVISION COMMUNICATIONS CORPORATION, a
Delaware corporation (the "Issuer"), and the guarantors listed on the signature
pages hereto (the "Guarantors"), on the one hand, and UBS WARBURG LLC, CREDIT
SUISSE FIRST BOSTON CORPORATION, and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED (the "Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase Agreement,
dated as of March 12, 2002, by and among the Issuer and the Initial Purchasers
(the "Purchase Agreement"), relating to the offering of $225,000,000 aggregate
principal amount of the Issuer's 8.125% Senior Subordinated Notes due 2009 (the
"Notes"). The Notes will be unconditionally guaranteed, on a senior subordinated
basis, as to payment of principal, premium, if any, and interest, by the
Guarantors (the "Guarantees"). The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
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As used in this Agreement, the following terms shall have the following
meanings:
"action" shall have the meaning set forth in Section 7(c) hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first introductory
paragraph hereto.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Board of Directors" shall have the meaning set forth in Section 5
hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Commission" shall mean the Securities and Exchange Commission.
"Day" shall mean a calendar day.
"Damages Payment Date" shall have the meaning set forth in Section
4(b) hereof.
"Delay Period" shall have the meaning set forth in Section 5 hereof.
"Effectiveness Period" shall have the meaning set forth in Section
3(b) hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) hereof.
"Guarantees" shall have the meaning set forth in the second
introductory paragraph hereto.
"Guarantors" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Guarantors' permitted
successors and assigns.
"Holder" shall mean any holder of a Registrable Note or Registrable
Notes.
"Indenture" shall mean the Indenture, dated as of March 1, 2002, by
and between the Issuer and Union Bank of California, N.A. as trustee,
pursuant to which the Notes are being issued, as amended or supplemented
from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the first
introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n) hereof.
"Issue Date" shall mean March 18, 2002, the date of original issuance
of the Notes.
"Issuer" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuer's permitted successors
and assigns.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"Liquidated Damages" shall have the meaning set forth in Section 4(a)
hereof.
"Losses" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"Notes" shall have the meaning set forth in the second introductory
paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a) hereof.
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"Participating Broker-Dealer" shall have the meaning set forth in
Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision
thereof or any other entity.
"Private Exchange" shall have the meaning set forth in Section 2(b)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(b) hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the second
introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n) hereof.
"Registrable Notes" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iii) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance
thereof and at all times subsequent thereto, in each case until (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iii) hereof is applicable, the Exchange Offer
Registration Statement) covering such Note, Exchange Note or Private
Exchange Note has been declared effective by the Commission and such Note,
Exchange Note or such Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii)
such Note has been exchanged pursuant to the Exchange Offer for an Exchange
Note or Exchange Notes that may be resold without restriction under state
and federal securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of
the Indenture or (iv) such Note, Exchange Note or Private Exchange Note has
been sold in compliance with Rule 144 or is salable pursuant to Rule
144(k).
"Registration Default" shall have the meaning set forth in Section
4(a) hereof.
"Registration Statement" shall mean any appropriate registration
statement of the Issuer covering any of the Registrable Notes filed with
the Commission under the Securities Act, and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
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"Requesting Participating Broker-Dealer" shall have the meaning set
forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the Commission providing
for offers and sales of securities made in compliance therewith resulting
in offers and sales by subsequent holders that are not affiliates of an
issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in Section 2(c)
hereof.
"Shelf Registration" shall have the meaning set forth in Section 3(a)
hereof.
"Shelf Registration Statement" shall mean a Registration Statement
filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private
Exchange Notes.
"Underwritten registration or underwritten offering" shall mean a
registration in which securities of the Issuer is sold to an underwriter
for reoffering to the public.
2. EXCHANGE OFFER
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(a) The Issuer shall (i) file a Registration Statement (the "Exchange Offer
Registration Statement") within 90 days after the Issue Date with the Commission
on an appropriate registration form with respect to a registered offer (the
"Exchange Offer") to exchange any and all of the Registrable Notes for a like
aggregate principal amount of notes (the "Exchange Notes") that are identical in
all material respects to the Notes (except that the Exchange Notes shall not
contain terms with respect to transfer restrictions or Liquidated Damages upon a
Registration Default), (ii) use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act within 150 days after the Issue Date and (iii) use its reasonable
best efforts to consummate the Exchange Offer within 210 days after the Issue
Date. Upon the Exchange Offer Registration Statement being
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declared effective by the Commission, the Issuer will offer the Exchange Notes
in exchange for surrender of the Notes. The Issuer shall keep the Exchange Offer
open for not less than 20 Business Days (or longer if required by applicable
law) after the date notice of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required to
represent to the Issuer in writing that (i) any Exchange Notes to be received by
it will be acquired in the ordinary course of its business, (ii) it has no
arrangement or understanding with any Person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Notes in violation of
the provisions of the Securities Act or, if it is an affiliate, it will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable, (iii) if such Holder is not a broker-dealer, it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes,
(iv) if such Holder is a broker-dealer that will receive Exchange Notes for its
own account in exchange for Notes that were acquired as a result of
market-making or other trading activities, it will deliver a prospectus in
connection with any resale of such Exchange Notes and (v) such Holder has full
power and authority to transfer the Notes in exchange for the Exchange Notes and
that the Issuer will acquire good and unencumbered title thereto free and clear
of any liens, restrictions, charges or encumbrances and not subject to any
adverse claims.
(b) The Issuer and the Initial Purchasers acknowledge that the staff of the
Commission has taken the position that any broker-dealer that elects to exchange
Notes that were acquired by such broker-dealer for its own account as a result
of market-making or other trading activities for Exchange Notes in the Exchange
Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter"
within the meaning of the Securities Act and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Notes (other than a resale of an unsold allotment resulting from the
original offering of the Notes).
The Issuer and the Initial Purchasers also acknowledge that the staff of
the Commission has taken the position that if the Prospectus contained in the
Exchange Offer Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating Broker-Dealer (a
"Requesting Participating Broker-Dealer"), the Issuer agrees to use its
reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective for a period not to exceed 180 days after the date on
which the Exchange Registration Statement is declared effective, or such longer
period if extended pursuant to the last paragraph of Section 5 hereof (such
period, the "Applicable Period"), or such earlier date as all Requesting
Participating Broker-Dealers shall have notified the Issuer in writing that such
Requesting Participating Broker-Dealers have resold all Exchange Notes acquired
in the Exchange Offer. The Issuer shall
5
include a plan of distribution in such Exchange Offer Registration Statement
that meets the requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial Purchasers or
any Holder, as the case may be, holds any Notes acquired by it that have, or
that are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuer upon the request of the Initial
Purchasers or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchasers or any such Holder, as the case may be, in exchange (the
"Private Exchange") for such Notes held by the Initial Purchasers or any such
Holder, as the case may be, a like principal amount of notes (the "Private
Exchange Notes") of the Issuer that are identical in all material respects to
the Exchange Notes except that the Private Exchange Notes may be subject to
restrictions on transfer and bear a legend to such effect. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.
For each Note surrendered in the Exchange Offer, the Holder will receive an
Exchange Note having a principal amount equal to that of the surrendered Note.
Interest on each Exchange Note and Private Exchange Note issued pursuant to the
Exchange Offer and in the Private Exchange will accrue from the last interest
payment date on which interest was paid on the Notes surrendered in exchange
therefor or, if no interest has been paid on the Notes, from the Issue Date.
Upon consummation of the Exchange Offer in accordance with this Section 2,
the Issuer shall have no further registration obligations other than the
Issuer's continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2
applies.
In connection with the Exchange Offer, the Issuer shall:
(i) mail or cause to be mailed to each Holder entitled to participate in
the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and
related documents;
(ii) utilize the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York;
(iii) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day on which the Exchange
Offer shall remain open; and
(iv) otherwise comply in all material respects with all applicable laws,
rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuer shall:
6
(i) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
(ii) deliver or cause to be delivered to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each such
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be,
equal in principal amount to the Registrable Notes of such Holder so accepted
for exchange.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuer to proceed with the Exchange Offer
or the Private Exchange, and no material adverse development shall have occurred
in any existing action or proceeding with respect to the Issuer and (iii) all
governmental approvals shall have been obtained, which approvals the Issuer
deems necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under (i)
the Indenture or (ii) an indenture identical in all material respects to the
Indenture (in either case, with such changes as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA and
shall provide that (a) the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture and (b) the Private Exchange Notes shall
be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture shall provide that the Exchange Notes, the Private
Exchange Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuer to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 210 days of the Issue Date, (iii) any Holder, other than the
Initial Purchasers, is prohibited by law or the applicable interpretations of
the staff of the Commission from participating in the Exchange Offer or does not
receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of the Issuer within the meaning of
the Securities Act) or (iv) the Initial Purchaser so requests with respect to
Notes or Private Exchange Notes that have, or that are reasonably likely to be
determined to have, the status of unsold allotments in an initial distribution
(each such event referred to in clauses (i) through (iv) of this sentence, a
"Shelf Filing Event"), then the Issuer shall file a Shelf Registration pursuant
to Section 3 hereof.
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3. SHELF REGISTRATION
------------------
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuer shall file with the Commission a
------------------
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes not exchanged in the Exchange
Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(iii)
is applicable (the "Shelf Registration"). The Issuer shall use its reasonable
best efforts to file with the Commission the Shelf Registration as promptly as
practicable. The Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Notes for resale by Holders in
the manner or manners designated by them (including, without limitation, one or
more underwritten offerings). The Issuer shall not permit any securities other
than the Registrable Notes to be included in the Shelf Registration.
(b) The Issuer shall use its reasonable best efforts (x) to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to
the later of 210 calendar days after the Issue Date or 120 days after the Shelf
Registration is required to be filed with the Commission and (y) to keep the
Shelf Registration continuously effective under the Securities Act for the
period ending on the date which is two years from the Issue Date, subject to
extension pursuant to the penultimate paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when all Registrable
Notes covered by the Shelf Registration have been sold in the manner set forth
and as contemplated in the Shelf Registration; provided, however, that (i) the
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Effectiveness Period in respect of the Shelf Registration shall be extended to
the extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and (ii) the Issuer may suspend the effectiveness of the Shelf
Registration Statement by written notice to the Holders solely (1) as a result
of the filing of a post-effective amendment to the Shelf Registration Statement
to incorporate annual audited financial information with respect to the Issuer
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related Prospectus, or (2) in
accordance with and subject to the provisions of the penultimate paragraph of
Section 5 hereof.
(c) Supplements and Amendments. The Issuer agrees to supplement or make
--------------------------
amendments to the Shelf Registration Statement as and when required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
4. LIQUIDATED DAMAGES
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(a) The Issuer and the Initial Purchasers agree that the Holders will
suffer damages if the Issuer fails to fulfill its obligations under Section 2 or
Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuer agrees that if:
8
(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following the Issue Date or, if that day
is not a Business Day, the next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared effective on
or prior to the 150th day following the Issue Date or, if that day is not a
Business Day, the next day that is a Business Day,
(iii) the Exchange Offer is not consummated on or prior to the 210th day
following the Issue Date, or, if that day is not a Business Day, the next day
that is a Business Day; or
(iv) the Shelf Registration Statement is required to be filed but is not
declared effective by the later of 210 calendar days after the Issue Date or 120
days after the Shelf Registration is required to be filed with the Commission,
or, if either such day is not a Business Day, the next day that is a Business
Day or is declared effective by such date but thereafter ceases to be effective
or usable, except if the Shelf Registration ceases to be effective or usable as
specifically permitted by the penultimate paragraph of Section 5 hereof (each
such event referred to in clauses (i) through (iv) a "Registration Default"),
liquidated damages in the form of additional cash interest ("Liquidated
Damages") will accrue on the affected Notes and the affected Exchange Notes, as
applicable. The rate of Liquidated Damages will be 0.25% per annum for the first
90-day period immediately following the occurrence of a Registration Default,
increasing by an additional 0.25% per annum with respect to each subsequent
90-day period up to a maximum amount of additional interest of 1.00% per annum,
from and including the date on which any such Registration Default shall occur
to, but excluding, the earlier of (1) the date on which all Registration
Defaults have been cured or (2) the date on which all the Notes and Exchange
Notes otherwise become freely transferable by Holders other than affiliates of
the Issuer without further registration under the Securities Act. If, after the
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cure of all Registration Defaults then in effect, there is a subsequent
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Registration Default, the rate of Liquidated Damages for such subsequent
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Registration Default shall initially be 0.25% regardless of the rate in effect
------------------------------------------------------------------------------
with respect to any prior Registration Default at the time of cure of such
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Registration Default.
--------------------
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is not entitled to
the benefits of the Shelf Registration Statement (i.e., such Holder has not
----
elected to include information) shall not be entitled to Liquidated Damages with
respect to a Registration Default that pertains to the Shelf Registration
Statement.
(b) So long as Notes remain outstanding, the Issuer shall notify the
Trustee within five Business Days after each and every date on which an event
occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each March
15 and September 15 (each a "Damages Payment Date"), commencing with the first
such date occurring after any such Liquidated Damages commence to accrue, to
Holders to whom regular interest is payable on such Damages Payment Date with
respect to Notes that are
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Registrable Securities. The amount of Liquidated Damages for Registrable
Notes will be determined by multiplying the applicable rate of Liquidated
Damages by the aggregate principal amount of all such Registrable Notes
outstanding on the Damages Payment Date following such Registration Default in
the case of the first such payment of Liquidated Damages with respect to a
Registration Default (and thereafter at the next succeeding Damages Payment Date
until the cure of such Registration Default), multiplied by a fraction, the
numerator of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. REGISTRATION PROCEDURES
-----------------------
In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuer shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Issuer hereunder, the Issuer shall:
(a) Prepare and file with the Commission the Registration Statement or
Registration Statements prescribed by Section 2 or 3 hereof, and use its
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that if
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(1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus contained
in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period
relating thereto, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuer shall furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, its counsel (if such
counsel is known to the Issuer) and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five Business Days prior to
such filing or such later date as is reasonable under the circumstances). The
Issuer shall not file any Registration Statement or Prospectus or any amendments
or supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement, or any
such Participating Broker-Dealer, as the case may be, its counsel, or the
managing underwriters, if any, shall reasonably object on a timely basis. During
any such period in which the Issuer refrains from filing due solely to the
objections of Holders, the period leading to one or more Registration Default
events will be suspended.
(b) Prepare and file with the Commission such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented by
any Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and
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the Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period relating thereto from whom the Issuer has received written
notice that such Broker-Dealer will be a Participating Broker-Dealer in the
applicable Exchange Offer, notify the selling Holders of Registrable Notes, or
each such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, as promptly as possible, and, if requested by any
such Person, confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense
of the Issuer, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the Commission of any stop order suspending the effectiveness of
a Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a Prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of
Exchange Notes by Participating Broker-Dealers the representations and
warranties of the Issuer contained in any agreement (including any underwriting
agreement) contemplated by Section 5(m)(i) hereof cease to be true and correct
in all material respects, (iv) of the receipt by the Issuer of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Notes or the
Exchange Notes for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event, the existence of any condition or any information becoming known to the
Issuer that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and (vi) of the Issuer's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use its reasonable best efforts to prevent
11
the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes, as the case may be, for sale in any
jurisdiction, and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest practicable
moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period and if reasonably requested by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement or any
Participating Broker-Dealer, as the case may be, (i) promptly incorporate in
such Registration Statement or Prospectus a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders or any Participating Broker-Dealer, as the
case may be (based upon advice of counsel), determine is reasonably necessary to
be included therein and (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Issuer has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however, that the
-------- -------
Issuer shall not be required to take any action hereunder that would, in the
written advice of counsel to the Issuer, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, who so requests, its
counsel and each managing underwriter, if any, at the sole expense of the
Issuer, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, its respective
counsel, and the underwriters, if any, at the sole expense of the Issuer, as
many copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuer hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement thereto.
12
(h) Prior to any public offering of Registrable Notes or Exchange Notes or
any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use its reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, the managing underwriter
or underwriters, if any, and its respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as the case may be,
for offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer, or
the managing underwriter or underwriters reasonably request; provided, however,
-------- -------
that where Exchange Notes or Registrable Notes are offered other than through an
underwritten offering, the Issuer agrees to use its reasonable best efforts to
cause the Issuer's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of such Exchange Notes
or Registrable Notes covered by the applicable Registration Statement; provided,
--------
however, that the Issuer shall not be required to (A) qualify generally to do
-------
business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to taxation
in excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or selling Holders may request
at least five Business Days prior to any sale of such Registrable Notes or
Exchange Notes.
(j) Use its reasonable best efforts to cause the Registrable Notes or
Exchange Notes covered by any Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be reasonably
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable Notes or
Exchange Notes, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Issuer will cooperate in
all reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by Section
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject to
Section 5(a) and the penultimate paragraph of this Section 5) file with the
Commission, at the sole expense of the Issuer, a supplement or post-effective
amendment to the
13
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the Exchange
Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates for
the Registrable Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the Notes and
take all such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate the registration
or the disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuer and its subsidiaries, as then
conducted (including any acquired business, properties or entity, if
applicable), and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same in writing if and
when requested; (ii) use its reasonable best efforts to obtain the written
opinions of counsel to the Issuer and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by the managing underwriter or underwriters; (iii) use its
reasonable best efforts to obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuer
(and, if necessary, any other independent certified 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 or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section; provided that the Issuer shall not be
--------
required to provide indemnification to any underwriter selected in accordance
with the provisions of Section 9 hereof with respect to information relating to
such underwriter furnished in writing to the Issuer by or on behalf of such
underwriter expressly for inclusion in such Registration Statement. The above
shall be done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
14
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or
(2) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, make available for inspection by any selling Holder of
such Registrable Notes being sold or each such Participating Broker-Dealer, as
the case may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent retained
by any such selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Issuer and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Issuer and its subsidiaries to
supply all information reasonably requested by any such Inspector in connection
with such Registration Statement and Prospectus. Each Inspector shall agree in
writing that it will keep the Records confidential and that it will not
disclose, or use in connection with any market transactions in violation of any
applicable securities laws, any Records that the Issuer determines, in good
faith, to be confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is necessary or advisable in the written advice of counsel for an
Inspector in connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and arising out
of, based upon, relating to, or involving this Agreement or the Purchase
Agreement, or any transactions contemplated hereby or thereby or arising
hereunder or thereunder, or (iv) the information in such Records has been made
generally available to the public; provided, however, that (i) each Inspector
-------- -------
shall agree to use reasonable best efforts to provide advance written notice to
the Issuer not less than 10 Business Days in advance of the potential disclosure
of any information by such Inspector pursuant to clause (i), (ii) or (iii) of
this sentence to permit the Issuer to obtain a protective order (or waive the
provisions of this paragraph (n)) and (ii) each such Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests
of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the Exchange
Notes, as the case may be, and cause the Indenture or the trust indenture
provided for in Section 2(a) hereof to be qualified under the TIA not later than
the effective date of the Exchange Offer or the first Registration Statement
relating to the Registrable Notes; and in connection therewith, cooperate with
the trustee under any such indenture and the Holders of the Registrable Notes or
Exchange Notes, as applicable, to effect such changes to such indenture as may
be required for such indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its reasonable best efforts to cause such
trustee to execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the Commission to enable
such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the Commission and
make generally available to the Issuer's securityholders earnings statements
satisfying the provisions
15
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes or Exchange Notes are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Issuer after the effective date of a Registration
Statement, which statements shall cover said 12-month periods consistent with
the requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange Offer
or a Private Exchange, use its reasonable best efforts to obtain an opinion of
counsel to the Issuer, in a form customary for underwritten transactions,
addressed to the Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as the case may be,
that the Exchange Notes or Private Exchange Notes, as the case may be, and the
related indenture constitute legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with its respective terms, subject
to customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by Holders to the Issuer (or to such other
Person as directed by the Issuer) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, xxxx, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being cancelled in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be;
provided that in no event shall such Registrable Notes be marked as paid or
--------
otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps reasonably
necessary or advisable to effect the registration of the Exchange Notes and/or
Registrable Notes covered by a Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes or Exchange Notes
as to which any registration is being effected to furnish to the Issuer such
information regarding such seller and the distribution of such Registrable Notes
or Exchange Notes as the Issuer may, from time to time, reasonably request. The
Issuer may exclude from such registration the Registrable Notes of any seller so
long as such seller fails to furnish such information within a reasonable time
after receiving such request and in the event of such an exclusion, the Issuer
shall have no further obligation under this Agreement (including, without
limitation, the obligations under Section 4) with respect to such seller or any
subsequent Holder of such Registrable Notes. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Issuer all
information required to be disclosed in order to make any information previously
furnished to the Issuer by such seller not materially misleading.
16
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuer, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Issuer, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the applicable Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes that, upon
actual receipt of any notice from the Issuer (x) of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v)
hereof, or (y) that the Board of Directors of the Issuer (the "Board of
Directors") has resolved that the Issuer has a bona fide business purpose for
doing so, then the Issuer may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
Issuer that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuer's
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 75 days after the Issuer notifies
the Holders of such good faith determination. There shall not be more than 75
days of Delay Periods during any 12-month period. Each of the Effectiveness
Period and the Applicable Period, if applicable, shall be extended by the number
of days during any Delay Period. Any Delay Period will not alter the obligations
of the Issuer to pay Liquidated Damages under the circumstances set forth in
Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the preceding
paragraph, notice shall be given as soon as practicable after the Board of
Directors makes such a determination of the need for a Delay Period and shall
state, to the extent practicable, an estimate of the duration of such Delay
Period and shall advise the recipient thereof of the agreement of such Holder
provided in the next succeeding sentence. Each Holder, by his acceptance of any
Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
17
6. REGISTRATION EXPENSES
---------------------
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuer (other than any underwriting discounts or
commissions) shall be borne by the Issuer, whether or not the Exchange Offer
Registration Statement or the Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration or in the case of Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuer and reasonable fees and disbursements of
one special counsel for all of the sellers of Registrable Notes (exclusive of
any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(m)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuer desires such insurance, (vii)
fees and expenses of all other Persons retained by the Issuer, (viii) internal
expenses of the Issuer (including, without limitation, all salaries and expenses
of officers and employees of the Issuer performing legal or accounting duties),
(ix) the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary or appropriate in order to comply with this
Agreement. Notwithstanding the foregoing or anything to the contrary, each
Holder shall pay all underwriting discounts and commissions of any underwriters
with respect to any Registrable Notes sold by or on behalf of it.
7. INDEMNIFICATION
---------------
(a) The Issuer and each Guarantor, jointly and severally, agrees to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
each Person, if any, who controls any such Person within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, the agents,
employees, officers and directors of each Holder and each such Participating
Broker-Dealer and the agents, employees, officers and directors of any such
controlling Person (each, a "Participant") from and against any and all losses,
liabilities, claims, damages and expenses
18
(including, but not limited to, reasonable attorneys' fees and any and all
reasonable expenses incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim, and any and all
reasonable amounts paid in settlement of any claim or litigation (in the manner
set forth in clause (c) below)) (collectively, "Losses") to which they or any of
them may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, 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 the light of the circumstances under which they were made,
not misleading, provided, however, that (i) the foregoing indemnity shall not be
available to any Participant to the extent, but only to the extent, that any
such Loss arises out of or is based upon any untrue statement or omission or
alleged untrue statement or omission relating to such Participant made in
reliance upon and in conformity with information relating to such Participant
furnished to the Issuer in writing by or on behalf of such Participant expressly
for use therein, and (ii) that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Participant from
whom the Person asserting such Losses purchased Registrable Notes if (x) it is
established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such amendment or
supplement was furnished to such Participant prior to the written confirmation
of such sale) to such Person with or prior to the written confirmation of such
sale, if required by applicable law, and (y) the untrue statement or omission or
alleged untrue statement or omission was completely corrected in the Prospectus
(as amended or supplemented if amended or supplemented as aforesaid) and such
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission that was the subject matter of the related
proceeding. This indemnity agreement will be in addition to any liability that
the Issuer or any Guarantor may otherwise have, including, but not limited to,
liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Issuer, each Guarantor, each Person, if any, who controls them
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, and each of its agents, employees, officers and directors and the
agents, employees, officers and directors of any such controlling Person from
and against any Losses to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuer shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, 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
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that any such Loss arises out
of or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission relating to such Participant made in reliance upon and in
conformity with information relating to such Participant furnished in writing to
the Issuer by or on behalf of such Participant expressly for use therein.
19
(c) Promptly after receipt by an indemnified party under subsection 7(a) or
7(b) above of notice of the commencement of any action, suit or proceeding
(collectively, an "action"), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of the
commencement of such action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have
under this Section 7 except to the extent that it has been prejudiced in any
material respect by such failure). In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
of such action, the indemnifying party will be entitled to participate in such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. Any such
separate firm for the Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Notes sold by all
such Participants and shall be reasonably acceptable to the Issuer or Guarantor,
as applicable, and any such separate firm for the Issuer or Guarantor, as
applicable, its affiliates, officers, directors, representatives, employees and
agents and such control Person of the Issuer or Guarantor, as applicable, shall
be designated in writing by the Issuer or Guarantor, as applicable, and shall be
reasonable acceptable to the Holders. An indemnifying party shall not be liable
for any settlement of any claim or action effected without its written consent,
which consent may not be unreasonably withheld. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and does not include an admission
of fault, culpability, or a failure to act, by or on behalf of such indemnified
party.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying
20
party, or is insufficient to hold harmless a party indemnified under this
Section 7, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in
such proportion as is appropriate to reflect the relative benefits received by
each indemnifying party, on the one hand, and each indemnified party, on the
other hand, from the sale of the Notes to the Initial Purchasers or the resale
of the Registrable Notes by such Holder, as applicable, or (ii) if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of each indemnified party, on the one hand,
and each indemnifying party, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
as the Guarantors, on the one hand, and each Participant, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the
sale of the Notes to the Initial Purchasers (net of discounts and commissions
but before deducting expenses) received by the Issuer are to (y) the total net
profit received by such Participant in connection with the sale of the
Registrable Notes. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer and the Guarantors, on the one
hand, or such Participant on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent, provided, however, that such written consent was not
unreasonably withheld.
8. RULES 144 AND 144A
------------------
The Issuer covenants that it will file the reports required, if any, to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission
21
thereunder in a timely manner in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time the Issuer is not
required to file such reports, it will, upon the request of any Holder or
beneficial owner of Registrable Notes, make available such information necessary
to permit sales pursuant to Rule 144A under the Securities Act. The Issuer
further covenants that for so long as any Registrable Notes remain outstanding
it will take such further action as any Holder of Registrable Notes may
reasonably request from time to time to enable such Holder to sell Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
9. UNDERWRITTEN REGISTRATIONS
--------------------------
If any of the Registrable Notes covered by any Shelf Registration are to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering and shall be reasonably acceptable to the Issuer.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. MISCELLANEOUS
-------------
(a) Registration of Guarantees. The Issuer acknowledges that the Guarantees
--------------------------
may be considered to be separate securities under applicable securities laws,
and that each of its obligations with respect to the Registrable Notes shall be
deemed to apply equally, to the extent required, to the Guarantees.
(b) No Inconsistent Agreements. The Issuer has not, as of the date hereof,
--------------------------
and shall not have, after the date of this Agreement, entered into any agreement
with respect to any of its securities that is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not conflict with and are not inconsistent with, in any material
respect, the rights granted to the holders of any of the Issuer's other issued
and outstanding securities under any such agreements. The Issuer has not entered
and will not enter into any agreement with respect to any of its securities
which will grant to any Person piggy-back registration rights with respect to
any Registration Statement, except for those for which waivers have been
obtained for registration rights already granted.
(c) Adjustments Affecting Registrable Notes. The Issuer shall not, directly
---------------------------------------
or indirectly, take any action with respect to the Registrable Notes as a class
that would adversely
22
affect the ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (I) the Issuer and (II)(A) the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented except pursuant to a written
agreement duly signed and delivered by the Issuer and each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange Notes, as the case
may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, supplement or waiver. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(e) Notices. All notices and other communications (including, without
-------
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the registrar
under the Indenture.
(ii) if to the Issuer, at the address as follows:
Extravision Communications Corporation
0000 Xxxxxxx Xxxx. Xxxxx 000 Xxxx
Xxxxx Xxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, General Counsel
(iii) if to the Initial Purchasers, at the address as follows:
UBS WARBURG LLC,
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax number: (000) 000-0000
Attention: Syndicate Department
23
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign holds
Registrable Notes.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or restriction of this
------------
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(k) Securities Held by the Issuer or Its Affiliates. Whenever the consent
-----------------------------------------------
or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuer or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial owners of Registrable
-------------------------
Notes and Participating Broker-Dealers are intended third-party beneficiaries of
this Agreement, and
24
this Agreement may be enforced by such Persons. No other Person is intended to
be, or shall be construed as, a third-party beneficiary of this Agreement.
(m) Attorneys' Fees. As between the parties to this Agreement, in any
---------------
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(n) Entire Agreement. This Agreement, together with the Purchase Agreement
----------------
and the Indenture, is intended by the parties as a final and exclusive statement
of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
25
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
ENTRAVISION COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
ENTRAVISION-TEXAS LIMITED PARTNERSHIP
ENTRAVISION-TEXAS, L.P., INC.
ENTRAVISION-TEXAS, G.P., LLC
ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
ENTRAVISION COMMUNICATIONS OF MIDLAND, LLC
ENTRAVISION, L.L.C.
ENTRAVISION-EL PASO, L.L.C.
ENTRAVISION SAN DIEGO, INC.
LOS CEREZOS TELEVISION COMPANY
THE COMMUNITY BROADCASTING COMPANY OF SAN DIEGO, INCORPORATED
ARIZONA RADIO, INC.
LAS TRES CAMPANAS TELEVISION, INC.
ASPEN FM, INC.
LATIN COMMUNICATIONS GROUP INC.
LATIN COMMUNICATIONS INC.
VEA ACQUISITION CORP.
LATIN COMMUNICATIONS EXCL INC.
EXCL HOLDINGS, INC.
EXCL COMMUNICATIONS, INC.
EMBARCADERO MEDIA, INC.
EMI SACRAMENTO RADIO, INC.
EMI LOS ANGELES RADIO, INC.
PORTLAND RADIO INC.
RIVERSIDE RADIO, INC.
MERIDIAN COMMUNICATIONS COMPANY
SEXTANT BROADCASTING COMPANY
[Continued on next page]
[Continued from prior page]
METRO MIX, INC.
NORTE BROADCASTING, INC.
NORTE BROADCASTING OF COLORADO, INC.
NORTE BROADCASTING OF NEW MEXICO, INC.
NORTE BROADCASTING OF NEVADA, INC.
PACIFICO BROADCASTING, INC.
RADIO EXITO, INC.
SUR BROADCASTING, INC.
SUR BROADCASTING OF COLORADO, INC.
SUR BROADCASTING OF NEW MEXICO, INC.
Z-SPANISH MEDIA CORPORATION
NEW WNDZ, INC.
NEWKKSJ, INC.
PERSONAL ACHIEVEMENT RADIO, INC.
KPPC RADIO, INC.
WZCO BROADCASTING, INC.
WRZA BROADCASTING, INC.
KZLZ BROADCASTING, INC.
KZFO BROADCASTING, INC.
KZPZ BROADCASTING, INC.
KZPZ LICENSE CORPORATION
KZMS BROADCASTING, INC.
KZCO BROADCASTING, INC.
OROVILLE RADIO, INC.
KZST BROADCASTING, INC.
KTLR BROADCASTING, INC.
KZSL BROADCASTING, INC.
KHZZ BROADCASTING, INC.
WLQY BROADCASTING, INC.
GLENDALE BROADCASTING, INC.
VISTA MEDIA GROUP, INC.
VISTA MEDIA GROUP OF NEW YORK, INC.
SEABOARD OUTDOOR ADVERTISING CO., INC.
SALE POINT POSTERS, INC.
VISTA OUTDOOR ADVERTISING, INC.
VISTA OUTDOOR ADVERTISING, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: As Chief Executive Officer
of each of the entities listed above
UBS WARBURG LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representatives of the Initial Purchasers
By: UBS WARBURG LLC
By: /s/ Xxxxx Xxxxxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxxxxx
Title: Executive Director
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
