Exhibit 4.2
$175,000,000
XXXXXXX & XXXXXX FLOORCOVERINGS, INC.
9 3/4% SENIOR SUBORDINATED NOTES DUE 2010
REGISTRATION RIGHTS AGREEMENT
February 20, 2002
Credit Suisse First Boston Corporation
Banc of America Securities LLC
BNP Paribas Securities Corp.
First Union Securities, Inc.
Fleet Securities, Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Xxxxxxx & Xxxxxx Floorcoverings, Inc., a Delaware corporation (the
"ISSUER"), proposes to issue and sell to Credit Suisse First Boston Corporation,
Banc of America Securities LLC, BNP Paribas Securities Corp., First Union
Securities, Inc. and Fleet Securities, Inc. (collectively, the "INITIAL
PURCHASERS"), upon the terms set forth in a purchase agreement dated as of
February 14, 2002 (the "PURCHASE AGREEMENT"), $175,000,000 aggregate principal
amount of its 9 3/4% Senior Subordinated Notes Due 2010 (the "INITIAL
SECURITIES") to be unconditionally guaranteed (the "GUARANTIES") by the entities
listed on Schedule B to the Purchase Agreement (the "GUARANTORS" and,
collectively with the Issuer, the "COMPANY"). The Initial Securities will be
issued pursuant to an Indenture, dated as of February 15, 2002 (the
"INDENTURE"), among the Issuer, the Guarantors named therein and The Bank of New
York, as trustee (the "TRUSTEE"). As an inducement to the Initial Purchasers to
enter into the Purchase Agreement, the Company agrees with the Initial
Purchasers, for the benefit of the Initial Purchasers, including without
limitation the Market Maker (as defined below) in its capacity as Market Maker,
and the holders of the Securities (as defined below) (collectively the
"HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. Unless not permitted by applicable law,
the Company shall prepare and, not later than 90 days (such 90th day being a
"FILING DEADLINE") after the date on which the Initial Purchasers purchase the
Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file
with the Securities and Exchange Commission (the "COMMISSION") a registration
statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with
respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof) who are not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer, to issue and deliver to such Holders in exchange for
the Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material respects to
the Initial Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"). The Company shall (i) use its reasonable best efforts to cause
such Exchange Offer Registration Statement to become effective under the
Securities
Act within 180 days after the Closing Date (such 180th day being an
"EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration
Statement effective for not less than 20 business days (meaning days which do
not include a Saturday, a Sunday or a day on which banking institutions are not
required to be open in the State of New York (each such day, A "BUSINESS DAY"))
(or longer, if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
"EXCHANGE OFFER REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the Company (i)
will be entitled to consummate the Registered Exchange Offer 20 Business Days
after such commencement (provided that the Company has accepted all the Initial
Securities theretofore validly tendered in accordance with the terms of the
Registered Exchange Offer) and (ii) will be required to consummate the
Registered Exchange Offer no later than 40 days after the date on which the
Exchange Offer Registration Statement is declared effective (such 40th day being
the "CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities (as defined in Section 6
hereof) electing to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the meaning
of the Securities Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements with any person to participate
in the distribution of the Exchange Securities and is not prohibited by any law
or policy of the Commission from participating in the Registered Exchange Offer)
to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
Notwithstanding the foregoing, the Company acknowledges that certain Holders
will be obligated to deliver a Market-maker Prospectus (as defined below) in
certain situations as set forth in Section 2(b) below.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 180-days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the
Initial Securities held by such Initial Purchaser, a like principal amount of
debt securities of the Company issued under the Indenture and identical in all
material respects to the Initial Securities (including the existence of
restrictions on transfer under the Securities Act and the securities laws of the
several states of the United States, but excluding provisions related to the
matters described in Section 6 hereof) (the "PRIVATE EXCHANGE SECURITIES"). The
Initial Securities, the Exchange Securities and the Private Exchange Securities
are herein collectively called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company shall:
(a) 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;
(b) keep the Registered Exchange Offer open for not less 20
Business Days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered
and not withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to
each Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer 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 part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, does not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
2. SHELF REGISTRATION; MARKET-MAKER PROSPECTUS. (a) If, (i) because of
any change in law or in applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect a Registered Exchange Offer,
as contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated by the 220th day after the Closing Date, (iii) any Initial Purchaser
so requests with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Initial Purchaser or
an Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer (other than by reason of such Holder being an Affiliate of the Company)
or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests, the Company shall take the following actions (the date on
which any of the conditions described in the foregoing clauses (i) through (iv)
occur, including in the case of clauses (iii) or (iv) the receipt of the
required notice, being a "TRIGGER DATE"):
(A) The Company shall as promptly as practicable (but in no
event more than 45 days after the Trigger Date (such 45th day being a
"FILING DEADLINE")) file with the Commission and thereafter use its
reasonable best efforts to cause to be declared effective in the case
of 2(i) above, on or prior to the 180th day after the Closing Date, and
in the case of 2(ii) through 2(iv) above, on or prior to the 60th day
after the Filing Deadline (each of both such days being an
"EFFECTIVENESS DEADLINE") a registration statement (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement and any registration statement relating to the
resale of Securities by the Market Maker as set forth in Section 2(b)
below, a "REGISTRATION STATEMENT") on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "SHELF REGISTRATION"); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(B) The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years (or for
such longer period if extended pursuant to Section 3(j) below) from the
date of its effectiveness or such shorter period that will terminate
when all the Securities covered by the Shelf Registration Statement (i)
have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any
successor rule thereof). The Company shall be deemed not to have used
its reasonable 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 Securities covered thereby not
being able to offer and sell such Securities during that period, unless
(i) such action is
required by applicable law or (ii) such action is taken by the Company
in good faith and for valid business reasons (not including avoidance
of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly complies with
Section 3(j) hereof, if applicable.
(C) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause the Shelf Registration Statement
and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) MARKET-MAKER PROSPECTUS. The Company acknowledges that any
Securities (including the Guaranties) that are held by Banc of America
Securities LLC or any of its affiliates (collectively, the "MARKET MAKER") may
not be resold by such Market Maker without delivering a prospectus (the
"MARKET-MAKER PROSPECTUS"). Consequently, the Company shall take the following
actions:
(A) The Company shall file, on the earlier of the date that
the Exchange Offer Registration Statement or a Shelf Registration
Statement (as set forth in Section 2(a) above) is filed with the
Commission (such date being a "FILING DEADLINE"), and thereafter use
its reasonable best efforts to cause to be declared effective on or
prior to the earlier of the consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration Statement a
Registration Statement (which may be the Exchange Offer Registration
Statement or the Shelf Registration Statement if permitted by the rules
and regulations of the Commission) on an appropriate form under the
Securities Act relating to the offer and sale by the Market Maker of
the Securities it holds from time to time in accordance with the
methods of distribution set forth in the Registration Statement and, if
applicable, Rule 415 under the Securities Act. Promptly upon the
Company satisfying the eligibility criteria for use of Form S-3 under
the Securities Act, the Company shall file a post-effective amendment
to the Registration Statement to convert it from a Form S-1 to a Form
S-3 Registration Statement.
(B) The Company shall use its reasonable best efforts to keep
the Registration Statement continuously effective in order to permit
the Market-maker Prospectus included therein to be lawfully delivered
by the Market Maker until such time as the Market Maker determines in
its judgment that it is no longer required to deliver a Market-maker
Prospectus in connection with the sales of Securities that it holds.
The Company shall be deemed not to have used its reasonable best
efforts to keep such Registration Statement effective during the
requisite period if it voluntarily takes any action that would result
in the Market Maker not being able to offer and sell such Securities
during that period, unless such action is required by applicable law.
Notwithstanding the foregoing, the Company shall not be required to
amend or supplement any such Registration Statement, any related
prospectus or any document incorporated by reference, for a period not
to exceed an aggregate of 60 days in any calendar year, if (i) an event
occurs and is continuing as a result of which the Registration
Statement would, in the Company's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading and (ii) the
Company determines in its good faith judgment that the disclosure of
such event at such time would be materially adverse to the Company or
otherwise relates to a pending acquisition or divestiture of assets
that has not yet been publicly disclosed.
(C) Notwithstanding any other provisions of this Agreement to
the contrary, the Company shall cause the Registration Statement and
the related Market-maker Prospectus and any amendment or supplement
thereto, as of the effective date of such Registration Statement,
amendment or supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(D) In connection with any Registration Statement filed
pursuant to this Section 2(b), the Company will comply with all
provisions of Section 3 until such time as the Market Maker determines
in its judgment that it is no longer required to deliver a Market-maker
Prospectus in connection with the sales of Securities that it holds.
The Company shall use its reasonable best efforts to deliver
Market-maker Prospectuses to the Market Maker immediately upon the
effectiveness of the Registration Statement and from time to time
thereafter upon request, in such quantities as the Market Maker shall
reasonably require.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
or any Registration Statement relating to the resale of Securities by the Market
Maker contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering or the resale of Securities by the Market
Maker) is participating in the Registered Exchange Offer, the Shelf
Registration Statement or other Registration Statement pursuant to
Section 2(b), the Company shall use its best efforts to reflect in each
such document, when so filed with the Commission, such comments as such
Initial Purchaser reasonably may propose; (ii) include the information
set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of Distribution"
section of the prospectus forming a part of the Exchange Offer
Registration Statement and include the information set forth in Annex D
hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in the prospectus forming a
part of the Exchange Offer Registration Statement; (iv) include within
the prospectus contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Securities received by such broker-dealer in the Registered Exchange
Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or
policies have been publicly disseminated by the staff of the Commission
or such positions or policies, in the reasonable judgment of the
Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the
Commission; and (v) in the case of a Shelf Registration Statement or
other Registration Statement pursuant to Section 2(b), include the
names of the Holders who propose to sell Securities pursuant to the
Shelf Registration Statement or other Registration Statement pursuant
to Section 2(b) as selling securityholders.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities covered by any Shelf
Registration Statement and any Participating Broker-Dealer from whom
the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer and who
has provided in writing to the Company a telephone number or facsimile
number and address for notices (which notice pursuant to clauses
(ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) 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;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the
case of the prospectus, in light of the circumstances under
which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain
the withdrawal at the earliest possible time, of any order suspending
the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration or other
Registration Statement pursuant to Section 2(b), without charge, at
least one copy of the Shelf Registration Statement or other
Registration Statement pursuant to Section 2(b) and any post-effective
amendment thereto, including financial statements and schedules, and,
if the Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and
each Initial Purchaser, and to any other Holder who 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, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period
and during the period the Company is required to provide a Market-maker
Prospectus, deliver to each Holder of Securities included within the
coverage of the Shelf Registration or other Registration Statement
pursuant to Section 2(b), without charge, as many copies of the
prospectus or Market-maker Prospectus (including, in each case, each
preliminary prospectus) included in the Shelf Registration Statement or
other Registration Statement pursuant to Section 2(b) and any amendment
or supplement thereto as such person may reasonably request. Subject to
clause (j) below, the Company consents, subject to the provisions of
this Agreement, to the use of the prospectus or any amendment or
supplement thereto by each of the selling Holders of the Securities in
connection with the offering and sale of the Securities covered by the
prospectus or Market-maker Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement or other
Registration Statement pursuant to Section 2(b).
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus or Market-maker Prospectus
following the Registered Exchange Offer, without charge, as many copies
of the final prospectus or Market-maker Prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request.
The Company consents, subject to the provisions of this Agreement,
including clause (j) below, to the use of the prospectus or
Market-maker Prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus or Market-maker
Prospectus, or any amendment or supplement thereto, included in such
Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the
Securities reasonably requests 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 Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it
is not then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period for
which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Notwithstanding the
foregoing, the Company shall not be required to amend or supplement a
Registration Statement, any related prospectus or any document
incorporated by reference, for a period not to exceed an aggregate of
30 days in any calendar year, if (i) an event occurs and is continuing
(including a pending acquisition or divestiture of assets that has not
yet been publicly disclosed) as a result of which the Registration
Statement would, in the Company's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading and (ii) the
board of directors of the Company determines in its good faith judgment
that the disclosure of such event at such time would have a material
adverse effect on the business or operations of the Company. If the
Company notifies the Initial Purchasers, the Holders of the Securities
and any known Participating Broker-Dealer in accordance with paragraphs
(ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities and
any such Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the
giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed
certificates for the Initial Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of
the Commission to the extent and so long as they are applicable to the
Registered Exchange Offer, the Shelf Registration or other Registration
Statement pursuant to Section 2(b) and will make generally available to
its security holders (or otherwise provide in accordance with Section
11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45
days after the end of a 12-month period (or 90 days, if such period is
a fiscal year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Company may require each Holder of Securities to be
sold pursuant to the Shelf Registration Statement or other Registration
Statement pursuant to Section 2(b) to furnish to the Company such
information regarding the Holder and the distribution of the Securities
as the Company may from time to time reasonably require for inclusion
in the Shelf Registration Statement or other Registration Statement
pursuant to Section 2(b), and the Company may exclude from such
registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements
(including in the case of a Shelf Registration Statement, if requested,
an underwriting agreement in customary form) and take all such other
action, if any, as any Holder of the Securities shall reasonably
request in order to facilitate the disposition of the Securities
pursuant to any Shelf Registration or other Registration Statement
pursuant to Section 2(b).
(p) In the case of any Shelf Registration or other
Registration Statement pursuant to Section 2(b), the Company shall (i)
make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company during normal
business hours at the office where normally kept and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders of
the Securities or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement or other
Registration Statement pursuant to Section 2(b), in each case, as shall
be reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Initial Purchasers by
you and on behalf of the other parties, by one counsel designated by
and on behalf of such other parties as described in Section 4 hereof;
provided, however, that any information that is designated by the
Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Holders of the
Securities or any such attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by
law, such disclosure is necessary to avoid or correct a material
misstatement or omission in such Registration Statement after a failure
by the Company to make such disclosure for a period of 5 Business Days
after receiving written notice from any Holder of the Securities or
such counsel designated pursuant to Section 4 hereof of the need to
make such disclosure or such information becomes available to the
public generally through no fault of such Initial Purchaser; provided,
further, that prior notice shall be provided as soon as reasonably
practicable to the Company of the potential disclosure of any
information
pursuant to the foregoing proviso to permit the Company to obtain a
protective order or to take other appropriate action to prevent the
disclosure of such information.
(q) In the case of any Shelf Registration or other
Registration Statement pursuant to Section 2(b), the Company, if
requested by any Holder of Securities covered thereby, shall cause (i)
its counsel to deliver an opinion and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any) relating to the
Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement or
other Registration Statement pursuant to Section 2(b) covering such
matters as are customarily covered in opinions given in connection with
underwritten offerings and such other matters as may be reasonably
requested by such Holders and managing underwriters, if any; (ii) its
officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
applicable Securities and (iii) its independent public accountants and
the independent public accountants with respect to any other entity for
which financial information is provided in the Shelf Registration
Statement or other Registration Statement pursuant to Section 2(b) to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested
by any Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its counsel to deliver to such Initial
Purchaser or such Participating Broker-Dealer a signed opinion in the
form set forth in Section 6(c) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants and
the independent public accountants with respect to any other entity for
which financial information is provided in the Registration Statement
to deliver to such Initial Purchaser or such Participating
Broker-Dealer a comfort letter, in customary form, meeting the
requirements as to the substance thereof as set forth in Section 6(a)
of the Purchase Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Initial Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall xxxx, or caused to be
marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; in no event
shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the
Initial Securities have been rated prior to the initial sale of such
Initial Securities, confirm such ratings will apply to the Securities
covered by a Registration Statement, or (b) if the Initial Securities
were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating
agencies, if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Registration Statement,
or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company will assist such broker-dealer in complying with
the requirements of such Rules, including, without limitation, by (i)
if such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its reasonable best efforts to take
all other steps not expressly contemplated herein but necessary to
effect the registration of the Securities covered by a Registration
Statement as contemplated hereby.
4. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement is ever filed or becomes effective,
including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company;
(v) all application and filing fees in connection
with listing the Exchange Securities on a national securities
exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent
certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by
or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of
not more than one counsel, who shall be Cravath, Swaine & Xxxxx, unless
another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared. Except as provided in the
preceding sentence, each Holder of the Securities shall pay all
expenses of its counsel and shall pay all underwriting discounts and
commissions, and transfer taxes, if any, relating to the disposition of
such Holder's Transfer Restricted Securities pursuant to a Registration
Statement.
5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Holder of the Securities, including, without limitation, the Market
Maker in its capacity as Market Maker, any Participating Broker-Dealer
and each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of the Securities Act or the Exchange
Act (each Holder, any Participating Broker-Dealer and such controlling
persons are referred to collectively as the "Indemnified Parties") from
and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited
to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party
may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Shelf Registration or other
Registration Statement pursuant to Section 2(b), 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 shall reimburse, as incurred,
the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action in respect thereof; provided,
however, that (i) the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration or other
Registration Statement pursuant to Section 2(b) in reliance upon and in
conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically
for inclusion therein and (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any
preliminary prospectus relating to a Shelf Registration Statement or
other Registration Statement pursuant to Section 2(b), the indemnity
agreement contained in this subsection (a) shall not inure to the
benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities
purchased the Securities concerned, to the extent that (i) a prospectus
relating to such Securities was required to be delivered by such Holder
or Participating Broker-Dealer under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of
such Holder or Participating Broker-Dealer results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of
the final prospectus if the Company had previously furnished copies
thereof to such Holder or Participating Broker-Dealer or (ii) the
indemnified party, after receiving written notice from the Company at
least five Business Days prior to the date of delivery of a copy of the
prospectus, of any event described in Sections (3)(b)(ii) through (v),
thereafter failed to discontinue delivery of such prospectus, as it may
be supplemented or amended; provided further, however, that this
indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party. The Company shall
also indemnify underwriters, their officers and directors and each
person who controls such underwriters within the meaning of the
Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder of the Securities, including, without
limitation, the Market Maker in its capacity as Market Maker, severally
and not jointly, will indemnify and hold harmless the Company, its
officers, agents or employees and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act
from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary
prospectus relating to a Shelf Registration or other Registration
Statement pursuant to Section 2(b), or arise out of or are based upon
the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating
or defending any loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party (i) other than to the extent the
indemnifying party did not otherwise learn of such action and such
omission results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) other than the indemnification
obligation provided in paragraph (a) or (b) above and to the extent of
any losses suffered as a result of such failure. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 5 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. In no event shall an indemnifying party be liable for
fees and expenses of more than one counsel (in addition to any local
counsel), separate from its own counsel, for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. After such notice from the indemnifying
party to the indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of any action
effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably
withheld or delayed), unless such indemnified party waived its rights
in writing under this Section 5, in which case the indemnified party
may effect such settlement without such consent. No indemnifying party
shall, without the prior written consent of the indemnified party,
settle, compromise or consent to any entry of judgment with respect to
any pending or threatened action 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 (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
jointly and severally contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection
(a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and
the indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof) as well as any other relevant equitable
considerations. 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 Company on the one hand or such Holder or such other
indemnified party, as the case may be, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). Notwithstanding any other provision of this Section 5(d), no
Holder of the Securities shall be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holder
from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls such indemnified
party within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as such indemnified party
and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 5 shall survive
the sale of the Securities pursuant to a Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "ADDITIONAL INTEREST") with
respect to the Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv)
below being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this
Agreement, other than a Registration Statement required solely
pursuant to Section 2(b) hereof, is not filed with the
Commission on or prior to the applicable Filing Deadline;
(ii) any Registration Statement required by this
Agreement, other than a Registration Statement required solely
pursuant to Section 2(b) hereof, is not declared effective by
the Commission on or prior to the applicable Effectiveness
Deadline;
(iii) the Registered Exchange Offer has not been
consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this
Agreement, other than a Registration Statement required solely
pursuant to Section 2(b) hereof, has been declared effective
by the Commission but (A) such Registration Statement
thereafter ceases to be effective or (B) such Registration
Statement or the related prospectus ceases to be usable in
connection with resales of Transfer Restricted Securities
during the periods specified herein because either (1) any
event occurs as a result of which the related prospectus
forming part of such Registration Statement would include any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the
light of the circumstances under which they were made not
misleading, or (2) it shall be necessary to amend such
Registration Statement or supplement the related prospectus,
to comply with the Securities Act or the Exchange Act or the
respective rules thereunder.
Additional Interest shall accrue on the Securities over and above the interest
set forth in the title of the Securities from and including the date on which
any such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a rate of 0.25% per annum (the
"ADDITIONAL INTEREST RATE") for the first 90-day period immediately following
the occurrence of such Registration Default. The Additional Interest Rate shall
increase by an additional 0.25% per annum with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum
Additional Interest Rate of 1.5% per annum.
(b) A Registration Default referred to in Section 6(a)(iv) hereof shall
be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash on the regular interest payment dates with respect to
the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount of
the Securities and further multiplied by a fraction, the numerator of which is
the number of days such Additional Interest Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the
date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of an Initial Security for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement, (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is saleable pursuant to Rule 144(k) under the Securities Act (or other
substantially similar resale exception promulgated in the future under the
Securities Act, but not Rule 144A under the Securities Act) or (v) the date such
Security shall have otherwise been transferred by the holder thereof and a new
Security not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of such Security shall not
require registration or qualification under the Securities Act or any similar
state law then in force.
7. RULES 144 AND 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder of Securities, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder of Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchasers upon request. Upon the request of any Holder
of Initial Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(b) 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 by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
Without the consent of the Holder of each Security, however, no modification may
change the provisions relating to the payment of Additional Interest.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
(3) if to the Company, at its address as follows:
Xxxxxxx & Xxxxxx Floorcoverings, Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(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 WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(j) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than the
Market Maker and subsequent Holders of Securities if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Issuer and the Guarantors in
accordance with its terms.
Very truly yours,
XXXXXXX & XXXXXX FLOORCOVERINGS, INC.,
By /s/ Xxxxxx X. XxXxx
----------------------------
Name: Xxxxxx X. XxXxx
Title: Vice President
MONTEREY CARPETS, INC.,
By /s/ Xxxxxx X. XxXxx
----------------------------
Name: Xxxxxx X. XxXxx
Title: Vice President
MONTEREY COLOR SYSTEMS, INC.,
By /s/ Xxxxxx X. XxXxx
----------------------------
Name: Xxxxxx X. XxXxx
Title: Vice President
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
FIRST UNION SECURITIES, INC.
FLEET SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION,
By /s/ Xxxxx Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
