REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.02
This
REGISTRATION RIGHTS AGREEMENT dated May 4, 2006 (this “Agreement”)
is
entered into by and among Saxon Capital, Inc., a Maryland corporation (the
“Company”),
the
guarantors listed in Schedule I hereto (the “Guarantors”)
and
X.X. Xxxxxx Securities Inc. (the “Initial
Purchaser”).
The
Company, the Guarantors and the Initial Purchaser are parties to the Purchase
Agreement dated April 26, 2006, as amended on May 3, 2006 (the “Purchase
Agreement”),
which
provides for the sale by the Company to the Initial Purchaser of $150,000,000
aggregate principal amount of the Company’s 12% Senior Notes due 2014 (the
“Notes”)
which
will be jointly and severally guaranteed (the “Guarantees”
and
together with the Notes, the “Securities”)
on an
unsecured senior basis by each of the Guarantors (except
that the Guarantee of each Servicing Guarantor (as defined in the Indenture)
shall be subordinated as and to the extent provided in the Indenture.
As
an
inducement to the Initial Purchaser to enter into the Purchase Agreement,
and in
satisfaction of a condition to the obligations of the Initial Purchaser
thereunder, the Company and the Guarantors have agreed to provide to the
Initial
Purchaser and its direct and indirect transferees the registration rights
set
forth in this Agreement. The execution and delivery of this Agreement is
a
condition to the closing under the Purchase Agreement.
In
consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
“Business
Day” shall mean any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed.
“Closing
Date” shall mean the Closing Date as defined in the Purchase
Agreement.
“Company”
shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, or any successor statute
thereto, and the rules, regulations and forms of the SEC promulgated thereunder,
all as the same shall be amended from time to time.
“Exchange
Date” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange
Offer” shall mean the exchange offer by the Company and the Guarantors of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
“Exchange
Offer Registration Default” shall have the meaning set forth in Section 2(d)
hereof.
“Exchange
Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.
“Exchange
Offer Registration Statement” shall mean a registration statement on Form S-4
(or, if applicable, on another appropriate form) relating to an offering
of
Exchange Securities pursuant to an Exchange Offer and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and any document incorporated
by reference therein.
“Exchange
Securities” shall mean senior notes issued by the Company and guaranteed by the
Guarantors under the Indenture containing terms identical in all material
respects to the Securities (except that the interest thereon shall accrue
from
the last date on which interest was paid on the Notes (or, if no such interest
has been paid, from the date the Notes were first issued) and the Exchange
Securities will not be subject to restrictions on transfer or contain terms
with
respect to the payment of Liquidated Damages) and to be offered to Holders
of
Securities in exchange for Securities pursuant to the Exchange
Offer.
“Guarantors”
shall have the meaning set forth in the preamble and shall also include any
Guarantor’s successors.
“Holders”
shall mean the Initial Purchaser, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect
transferees who become owners of Registrable Securities under the Indenture;
provided however
that for
purposes of Sections 4 and 5 of this Agreement, the term “Holders” shall include
Participating Broker-Dealers.
“Indemnified
Person” shall have the meaning set forth in Section 5(c) hereof.
“Indemnifying
Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture”
shall mean the Indenture relating to the Securities and the Exchange Securities
dated as of May 4, 2006 among the Company, the Guarantors and Deutsche Bank
Trust Company Americas, as trustee, and as the same may be amended from time
to
time in accordance with the terms thereof.
“Initial
Purchaser” shall have the meaning set forth in the preamble.
“Inspector”
shall have the meaning set forth in Section 3(a)(xiii) hereof.
“Liquidated
Damages” shall have the meaning set forth in Section 2(d) hereof.
“Majority
Holders” shall mean the Holders of a majority of the aggregate principal amount
of the outstanding Registrable Securities; provided however
that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, any Registrable Securities
owned
directly or indirectly by the Company or any of its affiliates shall not
be
considered outstanding and shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage
or
amount; and provided,
further, that if the Company shall issue any additional Securities under
the
Indenture prior to consummation of the Exchange Offer or, if applicable,
the
effectiveness of any Shelf Registration Statement, such additional Securities
and the Registrable Securities to which this Agreement relates shall be treated
together as one class for purposes of determining whether the consent or
approval of Holders of a specified percentage of Registrable Securities has
been
obtained.
“Participating
Broker-Dealers” shall have the meaning set forth in Section 4(a)
hereof.
“Person”
shall mean an individual, partnership, limited liability company, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof.
“Prospectus”
shall mean the prospectus included in a Registration Statement, including
any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement or “free-writing prospectus” (as defined in Rule 405
under the Securities Act), including a prospectus supplement or free-writing
prospectus with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by
all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
“Purchase
Agreement” shall have the meaning set forth in the preamble.
“Registrable
Securities” shall mean the Securities; provided however
that
the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under
the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to
be
sold pursuant to Rule 144(k) (or any similar provision then in force, but
not
Rule 144A) under the Securities Act or (iii) when such Securities cease to
be
outstanding.
“Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and
the
Guarantors
with
this Agreement, including without limitation: (i) all SEC, stock exchange
or
National Association of Securities Dealers, Inc. registration and filing
fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements
of
counsel for any Underwriters or Holders in connection with blue sky
qualification of any Exchange Securities or Registrable Securities), (iii)
all
expenses of any Persons in preparing or assisting in printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, any underwriting agreements, securities sales agreements or other
similar agreements and any other documents relating to the performance of
and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and
disbursements relating to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for the Company and the Guarantors
and, in the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders (which counsel shall be selected
by
the Majority Holders and which counsel may also be counsel for the Initial
Purchaser) and (viii) the fees and disbursements of the independent public
accountants of the Company and the Guarantors, including the expenses of
any
special audits or “comfort” letters required by this Agreement, but excluding
fees and expenses of counsel to the Underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and underwriting discounts
and
commissions, brokerage commissions and transfer taxes, if any, relating to
the
sale or disposition of Registrable Securities by a Holder.
“Registration
Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement 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
any
document incorporated by reference therein.
“Restricted
Holder” shall mean (i) a Holder that is an “affiliate”
(within
the meaning of Rule 405 under the Securities Act) of the Company or any
Guarantor, (ii) a Holder that acquires Exchange Securities outside the ordinary
course of its business, (iii) a Holder who, at the time of the commencement
of
the Exchange Offer, has arrangements or understandings with any Person to
participate in the distribution (within the meaning of the Securities Act)
of
the Exchange Securities in violation of the provisions of the Securities
Act,
(iv) a Holder that is a broker-dealer that will receive Exchange Securities
for
its own account in exchange for Registrable Securities that were acquired
as a
result of market-making or other trading activities unless such Holder has
represented to the Company in writing (which may be contained in the applicable
letter of transmittal) that it will comply with the applicable provisions
of the
Securities Act (including, but not limited to, the prospectus delivery
requirements thereunder).
“SEC”
shall mean the United States Securities and Exchange Commission,
or any
other federal agency at the time administering the Securities Act.
“Securities”
shall have the meaning set forth in the Preamble.
“Securities
Act” shall mean the Securities Act of 1933, or any successor statute thereto,
and the rules, regulations and forms of the SEC promulgated thereunder, all
as
the same shall be amended from time to time.
“Shelf
Effectiveness Period” shall have the meaning set forth in Section 2(b)
hereof.
“Shelf
Registration” shall mean a registration effected pursuant to Section 2(b)
hereof.
“Shelf
Registration Default” shall have the meaning set forth in Section 2(d)
hereof.
“Shelf
Registration Statement” shall mean a “shelf” registration statement of the
Company and the Guarantors that covers all or a portion of the Registrable
Securities (but no other securities unless approved by the Holders of a majority
of the aggregate principal amount of Registrable Securities that are to be
covered by such Shelf Registration Statement) on an appropriate form under
Rule
415 under the Securities Act, or any similar rule that may be adopted by
the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein.
“Staff”
shall mean the staff of the SEC.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time
to time.
“Trustee”
shall mean the trustee with respect to the Securities under the
Indenture.
“Underwriter”
shall have the meaning set forth in Section 3(e) hereof.
“Underwritten
Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.
2. Registration
Under the Securities Act.
(a) To
the
extent not prohibited by any applicable law or applicable interpretations
of the
Staff, the Company and the Guarantors shall use their commercially reasonable
efforts to have the Exchange Offer completed on or prior to 270 calendar
days
after the Closing Date.
The
Company and the Guarantors shall commence the Exchange Offer after the Exchange
Offer Registration Statement has been declared effective by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents
to each Holder stating, in addition to such other disclosures as are required
by
applicable law, substantially the following:
(i) that
the
Exchange Offer is being made pursuant to this Agreement and that all Registrable
Securities validly tendered and not properly withdrawn will be accepted for
exchange;
(ii) the
date
of acceptance for exchange (which shall be a period of at least 20 Business
Days
from the date such notice is mailed) (the “Exchange
Date”);
(iii) that
any
Registrable Security not tendered will remain outstanding and continue to
accrue
interest but will not retain any rights under this Agreement;
(iv) that
any
Holder electing to have a Registrable Security exchanged pursuant to the
Exchange Offer will be required to surrender such Registrable Security, together
with the appropriate letters of transmittal, to the institution and at the
address (located in the Borough of Manhattan, The City of New York) and in
the
manner specified in the notice, prior to the close of business on the Exchange
Date; provided however,
that if
any of the Registrable Securities are in book-entry form, such Prospectus
and
accompanying documents shall also specify how such surrender is to be effected
in accordance with applicable book-entry procedures; and
(v) that
any
Holder will be entitled to withdraw its election, not later than the close
of
business on the Exchange Date, by sending to the institution and at the address
(located in the Borough of Manhattan, The City of New York) specified in
the
notice, a telegram, telex, facsimile transmission or letter setting forth
the
name of such Holder, the principal amount of Registrable Securities delivered
for exchange and a statement that such Holder is withdrawing its election
to
have such Securities exchanged.
As
a
condition to participating in the Exchange Offer, a Holder will be required
to
represent to the Company and the Guarantors that it is not a Restricted Holder.
As
soon
as reasonably practicable after the Exchange Date, the Company and the
Guarantors shall:
(i) accept
for exchange Registrable Securities or portions thereof validly tendered
and not
properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver,
or cause to be delivered, to the Trustee for cancellation all Registrable
Securities or portions thereof so accepted for exchange by the Company and
issue, and cause the Trustee to promptly authenticate and deliver to each
Holder, Exchange Securities equal in aggregate principal amount to the aggregate
principal amount of the Registrable Securities surrendered by such
Holder.
The
Company and the Guarantors shall use their commercially reasonable efforts
to
complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions not contemplated hereby,
other than that the Exchange Offer does not violate any applicable law or
applicable interpretation of the Staff.
If,
during the period the Exchange Offer Registration Statement is effective,
an
event occurs which makes any statement made in such Exchange Offer Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Exchange Offer Registration Statement
in order to make the statements therein not misleading or in such Prospectus
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Company and the Guarantors shall
use
their commercially reasonable efforts to prepare and file with the SEC a
supplement or post-effective amendment to the Exchange Offer Registration
Statement or the related Prospectus or any document incorporated therein
by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Company agrees to notify
the
Holders to suspend the exchange of the Registrable Securities as promptly
as
reasonably practicable after the occurrence of such an event, and the Holders
hereby agree to suspend such exchange until the Company and the Guarantors
have
amended or supplemented the Prospectus to correct such misstatement or
omission.
The
Exchange Offer will be deemed to have been “completed” only if the Exchange
Securities received by Holders, other than Restricted Holders, in the Exchange
Offer in exchange for Registrable Securities are, upon receipt, transferable
by
each such Holder without restriction under the Securities Act and the Exchange
Act and without material restrictions under the blue sky or securities laws
of a
substantial majority of the states of the United States of America (including
any state specified pursuant to Section 3(a)(iv)). The Exchange Offer shall
be
deemed to have been completed when the Company has exchanged the Exchange
Securities for all outstanding Registrable Securities properly tendered and
not
withdrawn before the expiration of the Exchange Offer pursuant to the Exchange
Offer.
(b) In
the
event that (i) the Company and the Guarantors determine that the Exchange
Offer
Registration provided
for in Section 2(a) above is not available or may not be completed as soon
as
reasonably practicable after the Exchange Date because it would violate any
applicable law or applicable interpretation of the Staff, (ii) the Exchange
Offer is not for any reason completed on or prior to the 270th calendar day
after the Closing Date, or (iii) the Initial Purchaser, based
upon the reasonable advice of counsel for the Initial Purchaser that it is
not
permitted to exchange Registrable Securities held by it for Exchange Securities,
shall so request a
Shelf
Registration Statement providing for the sale of all the Registrable Securities
by the Holders thereof, use their commercially reasonable efforts to have
such
Shelf Registration Statement declared effective by the SEC as soon as reasonably
practicable after such filing obligation arises and use their commercially
reasonable efforts to keep effective the Shelf Registration Statement until
two
years after the Closing Date (or such shorter period that will terminate
when
all of the Registrable Securities covered thereby have been exchanged or
sold
pursuant thereto or in certain other circumstances).
In
the
event that the Company and the Guarantors are required to file a Shelf
Registration Statement pursuant to clause (iii) of the preceding sentence,
the
Company and the Guarantors shall file and use their commercially reasonable
efforts to have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the Initial
Purchaser after completion of the Exchange Offer.
The
Company and the Guarantors agree to use their commercially reasonable efforts
to
keep the Shelf Registration Statement continuously effective until the
expiration of the period referred to in Rule 144(k) (or any similar rule
then in
force, but not Rule 144A) under the Securities Act with respect to the
Registrable Securities or such shorter period that will terminate when all
the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or are no longer outstanding
(the “Shelf
Effectiveness Period”).
The
Company and the Guarantors further agree to supplement or amend the Shelf
Registration Statement and the related Prospectus if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or
by any
other rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder to correct information relating to such Holder, and
to use
their commercially reasonable efforts to cause any such amendment to become
effective and such Shelf Registration Statement and Prospectus to become
usable
as soon as thereafter practicable. The Company and the Guarantors agree to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment promptly after its being used or filed with the SEC.
(c) The
Company and the Guarantors shall pay promptly all Registration Expenses in
connection with any registration pursuant to Section 2(a) or Section 2(b)
hereof. Each Holder shall pay all underwriting discounts and commissions,
brokerage commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof or
a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed
to
have become effective unless it has been declared effective by the SEC (unless
such Registration Statement, under applicable SEC rules, becomes immediately
effective upon filing thereof).
The
Company, each Guarantor and the Initial Purchaser agree that the Holders
will
suffer damages if the Company or the Guarantors fail to fulfill their respective
obligations under Section 2(a) or Section 2(b) hereof and that it would not
be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company and each Guarantor agree that in the event that:
(i) the
Exchange Offer is not completed on or prior to 270 calendar days after the
Closing Date (an “Exchange
Offer Registration Default”);
or
(ii) (A)
a
Shelf Registration Statement is not filed with the SEC or declared effective
when required pursuant to Section 2(b) or (B) a Registration Statement is
declared effective as required pursuant to Section 2 but thereafter fails
to
remain effective or usable in connection with resales for more than 60
consecutive calendar days (a “Shelf
Registration Default”);
then
the
Company and the Guarantors hereby agree to pay each Holder of Registrable
Securities affected thereby, liquidated damages (“Liquidated
Damages”).
Liquidated Damages will accrue daily on the affected Registrable Securities.
The
rate of Liquidated Damages will be 0.25% per annum of the principal amount
of
Registrable Securities held by such Holder for the first 90-day period
immediately following the occurrence of an Exchange Offer Registration Default
or Shelf Registration Default, as applicable, increasing by 0.25% per annum
with
respect to each subsequent 90-day period, up to a maximum of 1.00% per annum,
in
each case until (x) with respect to a Registration Default, the Exchange
Offer
is completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely tradeable under
the Securities Act (which shall include, without limitation, an effective
Shelf
Registration Statement relating to the Registrable Securities) or (y) with
respect to a Shelf Registration Default, the Shelf Registration Statement
has
again been declared effective or the Prospectus again becomes usable. All
accrued Liquidated Damages shall be paid in cash by the Company on each Interest
Payment Date (as defined in the Indenture).
Notwithstanding
the foregoing, (1) the amount of Liquidated Damages payable shall not increase
because more than one Exchange Offer Registration Default has occurred and
is
pending and (2) a Holder of Registrable Securities or Exchange Securities
who is
not entitled to the benefits of the Shelf Registration Statement (i.e., such
Holder has not elected to furnish information to the Company in accordance
with
Section 3(b) hereof) shall not be entitled to Liquidated Damages with
respect to a Shelf Registration Default.
Anything
herein to the contrary notwithstanding, no Holder who (x) was eligible to
exchange such Holder’s outstanding Securities at the time that the Exchange
Offer was pending and consummated and (y) failed to validly tender such
Securities for exchange pursuant to the Exchange Offer shall be entitled
to
receive any Liquidated Damages that would otherwise accrue subsequent to
the
Exchange Date.
(e) The
Company shall notify the Trustee within 15 days after each date on which
an
event occurs in respect of which Liquidated Damages are required to be paid.
Any
amounts of Liquidated Damages due pursuant to this Section 2 will be payable
to
Holders entitled thereto in addition to any other interest payable from time
to
time with respect to the Registrable Securities in cash semi-annually on
the
interest payment dates specified in the Indenture (to the holders of record
as
specified in the Indenture), commencing with the first such interest payment
date occurring after any such Liquidated Damages commence to accrue. The
amount
of Liquidated Damages will be determined in a manner consistent with the
calculation of interest under the Indenture.
(f) Without
limiting the remedies available to the Initial Purchaser and the Holders,
the
Company and the Guarantors acknowledge that any failure by the Company or
the
Guarantors to comply with their obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchaser
or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event
of any such failure, the Initial Purchaser or any Holder may obtain such
relief
as may be required to specifically enforce the Company’s and the Guarantors’
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration
Procedures.
(a) In
connection with their obligations pursuant to Section 2(a) and Section 2(b)
hereof, the Company and the Guarantors shall:
(i) prepare
and file with the SEC a Registration Statement on the appropriate form under
the
Securities Act, which form (x) shall be selected by the Company and the
Guarantors, (y) shall, in the case of a Shelf Registration, be available
for the
sale of the Registrable Securities by the selling Holders thereof and (z)
shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC
to be
filed therewith; and use their commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective for the
applicable period in accordance with Section 2 hereof;
(ii) prepare
and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement
effective for the applicable period in accordance with Section 2 hereof and
cause each Prospectus to be supplemented by any required prospectus supplement
and, as so supplemented, to be filed pursuant to Rule 424 under the Securities
Act; and to the extent required, keep each Prospectus current during the
period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(iii) in
the
case of a Shelf Registration, furnish to each Holder of Registrable Securities,
to the Initial Purchaser, to counsel for such Holders (if any had been
identified by written notice to the Company) and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge,
as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto, as such Holder or Underwriter may reasonably
request, in order to facilitate the sale or other disposition of the Registrable
Securities thereunder; and, subject to Section 3(a)(ix), the Company and
the
Guarantors consent to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law and this Agreement by each of the
selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered
by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law and this Agreement;
(iv) use
their
commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or blue sky laws of such
jurisdictions as any Holder of Registrable Securities covered by a Registration
Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC; cooperate with such
Holders in connection with any filings required to be made with the National
Association of Securities Dealers, Inc.; and do any and all other acts and
things that may be reasonably necessary or advisable to enable each Holder
to
complete the disposition in each such jurisdiction of the Registrable Securities
owned by such Holder; provided however
that
neither the Company nor any Guarantor shall be required to (1) qualify as
a
foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, but
for
this Section 3(iv), (2) file any general consent to service of process in
any
such jurisdiction or (3) subject itself to taxation in any such jurisdiction
if
it is not so subject;
(v) in
the
case of a Shelf Registration, notify each Holder of Registrable Securities,
and
the Initial Purchaser promptly and, if requested by any such Holder or the
Initial Purchaser, confirm such advice in writing (1) when a Registration
Statement has become effective and when any post-effective amendment thereto
has
been filed and becomes effective, (2) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration Statement
has become effective, (3) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (4) if,
between
the effective date of a Registration Statement and the closing of any sale
of
Registrable Securities covered thereby, the representations and warranties
of
the Company or any Guarantor contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to an offering
of
such Registrable Securities cease to be true and correct in all material
respects or if the Company or any Guarantor receives any notification with
respect to the suspension of the qualification of the Registrable Securities
for
sale in any jurisdiction or the initiation of any proceeding for such purpose,
(5) of the happening of any event during the period a Shelf Registration
Statement is effective that makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or that
requires the making of any changes in such Registration Statement in order
to
make the statements therein not misleading or in such Prospectus in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading and (6) of any determination by the Company or
any
Guarantor that a post-effective amendment to a Registration Statement would
be
appropriate. Notwithstanding
the foregoing, upon advising each Holder of Registrable Securities, and the
Initial Purchaser, and, if required by any such person, upon confirming such
advice in writing (which advice pursuant to this clause shall be accompanied
by
an instruction to suspend the use of the Prospectus), the Company may suspend
the use of any Prospectus included in any Registration Statement in the event
that and for periods not to exceed 60 consecutive days and no more than two
times in any calendar year if (1) an event or circumstance occurs and is
continuing as a result of which the Shelf Registration Statement, any related
Prospectus or any document incorporated therein by reference as then amended
or
supplemented or proposed to be filed would, in the good faith judgment of
the
Company’s board of directors, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statement therein,
in light of the circumstances used under which they were made, not misleading,
and (2)(a) the Company’s board of directors determines, in its good faith
judgment, that the disclosure would constitute material and non-public
information, is not otherwise required to be filed or furnished with the
SEC and
would have a material adverse effect on its business, operations or prospects
or
(b) the Company’s board of directors otherwise determines in its good faith
judgment, that the disclosure would constitute material and non-public
information, is not otherwise required to be filed with the SEC and would
related to a material business transaction or development that has not yet
been
publicly disclosed.
(vi) use
their
commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement at the earliest possible moment
and provide immediate notice to each Holder of the withdrawal of any such
order;
(vii) in
the
case of a Shelf Registration, furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement
and
any post-effective amendment thereto (without any documents incorporated
therein
by reference or exhibits thereto, unless requested);
(viii) in
the
case of a Shelf Registration, cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and enable such Registrable Securities to be issued in such
denominations and registered in such names (consistent with the provisions
of
the Indenture) as such selling Holders may reasonably request at least one
Business Day prior to the closing of any sale of Registrable
Securities;
(ix) in
the
case of a Shelf Registration, upon the occurrence of any event contemplated
by
Section 3(a)(v)(5) hereof, use their commercially reasonable efforts to prepare
and file with the SEC as promptly as reasonably practicable a supplement
or
post-effective amendment to such Shelf Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other
required document so that, as thereafter delivered to purchasers of the
Registrable Securities, such Prospectus will not contain any untrue statement
of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company and
the
Guarantors
shall
notify the Holders of Registrable Securities to suspend use of the Prospectus
as
promptly as reasonably practicable after the occurrence of such an event,
and
such Holders hereby agree to suspend use of the Prospectus until the Company
and
the Guarantors have amended or supplemented the Prospectus to correct such
misstatement or omission or until the Company notifies the Holders that the
sale
of the Registrable Securities may be resumed;
(x) a
reasonable time prior to the filing of any Registration Statement, any
Prospectus, any amendment to a Registration Statement or amendment or supplement
to a Prospectus or of any document that is to be incorporated by reference
into
a Registration Statement or a Prospectus after initial filing of a Registration
Statement, provide copies of such document to the Initial Purchaser (and,
in the
case of a Shelf Registration Statement, to the Holders of Registrable Securities
and one counsel to be chosen by the Majority Holders) and make such of the
representatives of the Company and the Guarantors as shall be reasonably
requested by the Initial Purchaser (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities or their chosen counsel
as
provided above in this Section 3(x)) available for discussion of such document;
and the Company and the Guarantors shall not, at any time after initial filing
of a Registration Statement, file any Prospectus, any amendment of or supplement
to a Registration Statement or a Prospectus, or any document that is to be
incorporated by reference into a Registration Statement or a Prospectus,
of
which the Initial Purchaser (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities and their chosen counsel as provided
above
in this Section 3(x)) shall not have previously been advised and furnished
a
copy or to which the Initial Purchaser (and, in the case of a Shelf Registration
Statement, the Holders of Registrable Securities or their chosen counsel
as
provided above in this Section 3(x)) shall object within a reasonable time
of
receipt;
(xi) obtain
a
CUSIP number for all Exchange Securities or Registrable Securities, as the
case
may be, not later than the effective date of a Registration
Statement;
(xii) cause
the
Indenture to be qualified under the Trust Indenture Act in connection with
the
registration of the Exchange Securities or Registrable Securities, as the
case
may be; cooperate with the Trustee and the Holders to effect such changes
to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and execute, and use their
commercially reasonable efforts to cause the Trustee to execute, all documents
as may be required to effect such changes and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so qualified
in
a timely manner;
(xiii) in
the
case of a Shelf Registration (including an Underwritten Offering thereunder),
make available for inspection by a representative of the Holders of the
Registrable Securities (an “Inspector”),
any
Underwriter participating in any Underwritten Offering pursuant to such Shelf
Registration Statement, any attorneys and accountants designated by the Holders
of Registrable Securities and any attorneys and accountants designated by
such
Underwriter, at reasonable times and in a reasonable manner, all pertinent
financial and other records, documents and properties of the Company and
the
Guarantors, and cause the respective officers, directors and employees of
the
Company and the Guarantors to supply all information reasonably requested
by any
such Inspector, Underwriter, attorney or accountant in connection with a
Shelf
Registration Statement, in each case that would customarily be reviewed or
examined in connection with “due diligence” review of the Company and the
Guarantors; provided
that the
foregoing inspection and information gathering (1) shall be coordinated on
behalf of the selling Holders, Underwriters and representatives thereof by
one
counsel, who shall be such counsel as may be chosen by the Majority Holders
or
by the Underwriters, as the case may be, and (2) if any such information
is
identified by the Company or any Guarantor as being confidential or proprietary,
shall not be available for any such Holder or Underwriter who does not agree
in
writing pursuant to a customary non-disclosure agreement to hold such
information in confidence;
(xiv) in
the
case of a Shelf Registration, use their commercially reasonable efforts to
cause
all Registrable Securities to be listed on any securities exchange or any
automated quotation system on which similar securities issued or guaranteed
by
the Company or any Guarantor are then listed if requested by the Majority
Holders, to the extent such Registrable Securities satisfy applicable listing
requirements;
(xv) if
reasonably requested by any Holder of Registrable Securities covered by a
Shelf
Registration Statement, promptly include in a Prospectus supplement or
post-effective amendment such information with respect to such Holder as
such
Holder reasonably requests to be included therein and make all required filings
of such Prospectus supplement or such post-effective amendment as soon as
reasonably practicable after the Company has received notification of the
matters to be so included in such filing; and
(xvi) in
the
case of a Shelf Registration, enter into such customary agreements and take
all
such other reasonable actions in connection therewith (including those requested
by the Majority Holders of the Registrable Securities being sold) in order
to
expedite or facilitate the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such connection, (1)
to the
extent possible, make such representations and warranties to the Holders
and any
Underwriters of such Registrable Securities with respect to the business
of the
Company and its subsidiaries and the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference,
if any,
in each case, in form, substance and scope as are customarily made by issuers
to
underwriters in underwritten offerings and confirm the same if and when
received, (2) obtain opinions of counsel to the Company and the Guarantors
(which counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to a representative of the Majority Holders and such Underwriters
and their respective counsel) addressed to each selling Holder and Underwriter
of Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings of the type contemplated by this provision,
(3) obtain “comfort” letters from the independent certified public accountants
of the Company and the Guarantors (and, if necessary, any other certified
public
accountant of any subsidiary of the Company or any Guarantor, or of any business
acquired by the Company or any Guarantor for which financial statements and
financial data are or are required to be included in the Registration Statement)
addressed to each selling Holder and Underwriter of Registrable Securities
(subject, in each case, to the policies and procedures of the independent
certified public accountants of the Company and the Guarantors and such other
independent certified public accountants regarding the preparation and delivery
of such letters), such letters to be in customary form and covering matters
of
the type customarily covered in “comfort” letters in connection with
underwritten offerings of the type contemplated by this provision and (4)
deliver such documents and certificates as may be reasonably requested by
the
Majority Holders or the Underwriters, and which are customarily delivered
in
underwritten offerings of the type contemplated by this provision, to evidence
the continued validity of the representations and warranties of the Company
and
the Guarantors made pursuant to clause (1) above and to evidence compliance
with
any customary conditions contained in an underwriting agreement.
(b) In
the
case of a Shelf Registration Statement, the Company and the Guarantors may
require each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed disposition by such Holder
of
such Registrable Securities as the Company and the Guarantors may from time
to
time reasonably request in writing. So long as any Holder fails to furnish
such
information in a reasonably timely manner after receiving the request, the
Company and the Guarantors shall (i) have no obligation under this Agreement
to
provide for the disposition of such Holder’s Registrable Securities in the Shelf
Registration Statement in respect to which such information was requested,
(ii)
not be required to provide for the disposition of such Holder’s Registrable
Securities in any post-effective amendment to such Shelf Registration Statement
or any future Shelf Registration Statement that is not otherwise required
to be
filed and (iii) not be required to pay any Liquidated Damages to such Holder
as
provided in Section 2(d) hereof. Each Holder including Registrable Securities
in
a Shelf Registration Statement shall agree to furnish promptly to the Company
all information regarding such Holder and the proposed distribution by such
Holder of such Registrable Securities required to make the information
previously furnished to the Company by such Holder not materially
misleading.
(c) In
the
case of a Shelf Registration Statement, each Holder of Registrable Securities
agrees that, upon receipt of any notice from the Company or any Guarantor
of the
happening of any event of the kind described in Section 3(a)(v)(3), (4) or
(5)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated
by
Section 3(a)(ix) hereof and, if so directed by the Company or any Guarantor,
such Holder will deliver to the Company and the Guarantors all copies in
its
possession, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Registrable Securities that is current at
the
time of receipt of such notice.
(d) If
the
Company or any Guarantor shall give any notice pursuant to Section 3(c) hereof
to suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company and the Guarantors shall extend the period
during which such Shelf Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date
when
the Holders of such Registrable Securities shall have received copies of
the
supplemented or amended Prospectus necessary to resume such dispositions.
(e) The
Holders of Registrable Securities covered by a Shelf Registration Statement
who
desire to do so may sell such Registrable Securities in an Underwritten
Offering. In any such Underwritten Offering, the investment bank or investment
banks and manager or managers (each an “Underwriter”)
that
will administer the offering will be selected by the Holders of a majority
in
principal amount of the Registrable Securities included in such
offering.
4. Participation
of Broker-Dealers in Exchange Offer.
(a) The
Staff
has taken the position that any broker-dealer that receives Exchange Securities
for its own account in the Exchange Offer in exchange for Securities that
were
acquired by such broker-dealer as a result of market-making or other trading
activities (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 Securities.
The
Company and the Guarantors understand that it is the Staff’s 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 Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Securities for their
own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In
light
of the above, and notwithstanding the other provisions of this Agreement,
the
Company and the Guarantors agree to amend or supplement the Prospectus contained
in the Exchange Offer Registration Statement until 90 days after the effective
date of the Exchange Offer Registration Statement (as such period may be
extended pursuant to Section 3(d) of this Agreement), if requested by one
or
more Participating Broker-Dealers, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above.
The
Company and the Guarantors further agree that Participating Broker-Dealers
shall
be authorized to deliver such Prospectus during such period in connection
with
the resales contemplated by this Section 4 in accordance with applicable
law and
this Agreement.
(c) The
Initial Purchaser shall have no liability to the Company, any Guarantor or
any
Holder with respect to any request that they may make pursuant to Section
4(b)
above.
5. Indemnification
and Contribution.
(a) The
Company and each of the Guarantors jointly and severally agree to indemnify
and
hold harmless Initial Purchaser and each Holder, their respective affiliates,
directors and officers and each Person, if any, who controls the Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities
Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, reasonable legal
fees
and other expenses incurred in connection with any suit, action or proceeding
or
any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
or
any omission or alleged omission to state therein a material fact required
to be
stated therein or necessary in order to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus or any omission or alleged omission
to
state therein 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, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made
in
reliance upon and in conformity with any information relating to the Initial
Purchaser, or information relating to any Holder furnished to the Company
in
writing through the Initial Purchaser or any selling Holder expressly for
use
therein; provided,
however,
that
the foregoing indemnity agreement with respect to any Prospectus, shall not
inure to the benefit of the Initial Purchaser, its affiliates, directors
or
officers or any Holder (or any person, if any, who controls such Initial
Purchaser or Holder within the meaning of Section 15 of the Securities Act
or
Section 20 of the Exchange Act), from whom the person asserting any such
losses,
claims, damages or liabilities purchased Exchange Securities or Securities
where
it shall have been determined by a court of competent jurisdiction by final
and
nonappealable judgment that (i) prior to the time of sale, the Company had
notified the Initial Purchaser or Holder, as the case may be, that the
Prospectus delivered to such person contains an untrue statement of material
fact or omits to state therein a material fact required to be stated therein
in
order to make the statements therein not misleading, (ii) such untrue statement
or omission of fact was corrected in an amended or supplemented Prospectus
that
was provided to the Initial Purchaser or Holder, as the case may be, far
enough
in advance of the time of sale so that such corrected Prospectus could have
been
provided to the person asserting such loss, claim, damage or liability prior
to
the time of sale, (iii) the Initial Purchaser or Holder, as the case may
be, did
not send or give such corrected Prospectus to such person at or prior to
the
time of sale and (iv) such loss, claim, damages or liabilities would not
have
occurred had the Initial Purchaser or Holder, as the case may be, delivered
the
corrected Prospectus to such Person. In connection with any Underwritten
Offering permitted by Section 3, the Company and the Guarantors will also
enter
into an underwriting agreement pursuant to which the Company and the Guarantors
will agree to jointly and severally indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating
in
such Underwritten Offering, their respective affiliates and each Person who
controls such Persons (within the meaning of the Securities Act and the Exchange
Act) to the same extent as provided above with respect to the indemnification
of
the Holders, if requested in connection with any Registration Statement for
such
Underwritten Offering.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless
the
Company, the Guarantors, the Initial Purchaser and the other selling Holders,
the directors of the Company and the Guarantors, each officer of the Company
and
the Guarantors who signed the Registration Statement and each Person, if
any,
who controls the Company, the Guarantors, the Initial Purchaser and any other
selling Holder within the meaning of Section 15 of the Securities Act or
Section
20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages
or
liabilities that arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and
in
conformity with any information relating to such Holder furnished to the
Company
in writing by such Holder expressly for use in any Registration Statement
and
any Prospectus.
(c) If
any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any
Person
in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such Person (the “Indemnified
Person”)
shall
promptly notify the Person against whom such indemnification may be sought
(the
“Indemnifying
Person”)
in
writing; provided however
that
the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 5 except to the extent that
it has
been materially prejudiced (through the forfeiture of substantive rights
or
defenses) by such failure; and provided,
further,
that
the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under
this
Section 5. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person
shall
retain counsel reasonably satisfactory to the Indemnified Person (who shall
not,
without the consent of the Indemnified Person, be counsel to the Indemnifying
Person) to represent the Indemnified Person and any others entitled to
indemnification pursuant to this Section 5 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such
counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the reasonable
fees
and expenses of such counsel shall be at the sole expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall
have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed
within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that
there
may be legal defenses available to it that are different from or in addition
to
those available to the Indemnifying Person; or (iv) the named parties in
any
such proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the
same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than
one
separate firm (in addition to any reasonably necessary local counsel) for
all
Indemnified Persons, and that all such reasonable fees and expenses shall
be
reimbursed as they are incurred. Any such separate firm (x) for any Initial
Purchaser, its affiliates, directors and officers and any control Persons
of
such Initial Purchaser shall be designated in writing by JPMorgan, (y) for
any
Holder, its directors and officers and any control Persons of such Holder
shall
be designated in writing by the Majority Holders and (z) in all other cases
shall be designated in writing by the Company. The Indemnifying Person shall
not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment
for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement
or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of
any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of
such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent
of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter
of
such proceeding and (B) does not include any statement as to or any admission
of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If
the
indemnification provided for in paragraphs (a) and (b) above is unavailable
to
an Indemnified Person or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a
result
of such losses, claims, damages or liabilities (i) in such proportion as
is
appropriate to reflect the relative benefits received by the Company and
the
Guarantors from the offering of the Securities and the Exchange Securities,
on
the one hand, and by the Holders from receiving Securities or Exchange
Securities registered under the Securities Act, on the other hand, or (ii)
if
the allocation provided by clause (i) is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and
the
Guarantors on the one hand and the Holders on the other in connection with
the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the
Holders
on the other 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 and the Guarantors or by the Holders and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The
Company, the Guarantors and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by
pro rata
allocation (even if the Holders were treated as one entity for such purpose)
or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to
the
limitations set forth above, any legal or other expenses reasonably incurred
by
such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder
be
required to contribute any amount in excess of the amount by which the
total
price at which the Securities or Exchange Securities sold by such Holder
exceeds
the amount of any damages that such Holder has otherwise been required to
pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The
remedies provided for in this Section 5 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any Indemnified
Person
at law or in equity.
(g) The
indemnity and contribution provisions contained in this Section 5 shall remain
operative and in full force and effect regardless of (i) any termination
of this
Agreement, (ii) any investigation made by or on behalf of the Initial Purchaser
or any Holder or any Person controlling the Initial Purchaser or any Holder,
or
by or on behalf of the Company or the Guarantors or the officers or directors
of
or any Person controlling the Company or the Guarantors, (iii) acceptance
of any
of the Exchange Securities and (iv) any sale of Registrable Securities pursuant
to a Shelf Registration Statement.
6. General.
(a) No
Inconsistent Agreements. The
Company and the Guarantors represent, warrant and agree that (i) 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 any other outstanding
securities issued or guaranteed by the Company or any Guarantor under any
other
agreement and (ii) neither the Company nor any Guarantor has entered into,
or on
or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities
in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments
and Waivers. The
provisions of this Agreement, including the provisions of this sentence,
may not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given unless the Company and the Guarantors
have obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided however
that
no
amendment, modification, supplement, waiver or consent to any departure from
the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder. Any
amendments, modifications, supplements, waivers or consents pursuant to this
Section 6(b) shall be by a writing executed by each of the parties
hereto.
(c) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company by means
of a
notice given in accordance with the provisions of this Section 6(c), which
address initially is, with respect to the Initial Purchaser, the address
set
forth in the Purchase Agreement; (ii) if to the Company or any Guarantor,
initially at the Company’s address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance
with
the provisions of this Section 6(c); and to such other persons at their
respective addresses as provided in the Purchase Agreement and thereafter
at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c). All such notices and communications shall be deemed
to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, 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 specified in the Indenture.
(d) Successors
and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent Holders; provided however
that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the Indenture
and the Purchase Agreement. If any transferee of any Holder shall acquire
Registrable Securities in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform
all of
the terms and provisions of this Agreement and such Person shall be entitled
to
receive the benefits hereof. The Initial Purchaser (in its capacity as Initial
Purchaser) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any
breach
by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Third
Party Beneficiaries.
Each
Holder shall be a third party beneficiary to the agreements made hereunder
between the Company and the Guarantors, on the one hand, and the Initial
Purchaser, on the other hand, and each Holder shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary
or
advisable to protect its rights or the rights of other Holders
hereunder.
(f) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be
deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
(g) Headings.
The
headings in this Agreement are for convenience of reference only, are not
a part
of this Agreement and shall not limit or otherwise affect the meaning
hereof.
(h) Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
(i) Miscellaneous.
This
Agreement contains the entire agreement between the parties relating to the
subject matter hereof and supersedes all oral statements and prior writings
with
respect thereto. If any term, provision, covenant or restriction contained
in
this Agreement is held by a court of competent jurisdiction to be invalid,
void
or unenforceable or against public policy, the remainder of the terms,
provisions, covenants and restrictions contained herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
The
Company, the Guarantors and the Initial Purchaser shall endeavor in good
faith
negotiations to replace the invalid, void or unenforceable provisions with
valid
provisions the economic effect of which comes
as
close as possible to that of the invalid, void or unenforceable
provisions.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
SAXON
CAPITAL, INC.
By:
Name:
Title:
GUARANTORS
SAXON
CAPITAL HOLDINGS, INC.
By:
Name:
Title:
SCI
SERVICES, INC.
By:
Name:
Title:
SAXON
MORTGAGE SERVICES, INC.
By:
Name:
Title:
SAXON
MORTGAGE, INC.
By:
Name:
Title:
SAXON
HOLDING, INC.
By:
Name:
Title:
SAXON
FUNDING MANAGEMENT, INC.
By:
Name:
Title:
Confirmed
and accepted as of the date first above written:
X.X.
XXXXXX SECURITIES INC.
By:
Authorized
Signatory
Schedule
I
Guarantors
1. Saxon
Capital Holdings, Inc.
2. SCI
Services, Inc.
3.
Saxon
Mortgage Services, Inc.
4. Saxon
Mortgage, Inc.
5. Saxon
Holding, Inc.
6.
Saxon
Funding Management, Inc.
