XXXXXXX ESCROW CORP.
$600,475,000 Senior Secured First Priority Discount Notes due 2001
$131,560,000 Senior Secured Second Priority Discount Notes due 2001
REGISTRATION AGREEMENT
May 20, 1997
BEAR, XXXXXXX & CO. INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
c/o BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Xxxxxxx Escrow Corp., a Delaware corporation (the "Company"), proposes
to issue and sell to Bear, Xxxxxxx & Co. Inc., Chase Securities Inc. and Credit
Suisse First Boston Corporation (the "Initial Purchasers"), upon the terms set
forth in a purchase agreement dated May 15, 1997, among the Company and the
Initial Purchasers (the "Purchase Agreement"), $600,475,000 aggregate principal
amount at maturity of its Senior Secured First Priority Discount Notes due 2001
(the "First Priority Notes") and $131,560,000 aggregate principal amount at
maturity of its Senior Secured Second Priority Discount Notes due 2001 (the
"Second Priority Notes" and, together with the First Priority Notes, the
"Securities"). Capitalized terms used but not specifically defined herein are
defined in the Purchase Agreement. As an inducement to the Initial Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Company agrees with you, for the benefit of the
holders of the Securities (including the Initial Purchasers, the "Holders"), as
follows:
1. Registered Exchange Offer. The Company shall prepare and, not later
than July 7, 1997, shall 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 "1933 Act"), with respect to a proposed offer (the "Registered Exchange
Offer") to the Holders to issue and deliver to such Holders, in exchange for the
First Priority Notes and Second Priority Notes, a like principal amount of
Senior Secured First Priority Discount Exchange Notes due 2001 and Senior
Secured Second Priority Discount Exchange Notes due 2001 of the Company
(collectively the "Exchange Notes"), identical in all material respects to the
respective Securities (except that the interest rate increase provisions and the
transfer restrictions will be modified or eliminated, as appropriate), shall use
its best efforts to cause the Exchange Offer Registration Statement to become
effective under the 1933 Act not later than October 17, 1997 and shall use its
best efforts to keep the Exchange Offer Registration Statement effective under
the 1933 Act until the close of business on the 180th day following the
expiration of the Registered Exchange Offer (such period being called the
"Exchange Offer Registration Period") for use by Exchanging Dealers (as defined
below) as contemplated in Section 4(g) below. The Company shall be deemed not to
have used its best efforts to keep the Exchange Offer Registration Statement
effective during the Exchange Offer Registration Period if it voluntarily takes
any action that would result in Exchanging Dealers not being able to use such
Registration Statement as contemplated in such Section 4(g), 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 thereafter complies with the
requirements of Section 4(j) hereof, if applicable. The Exchange Notes will be
issued under the Indenture dated as of May 20, 1997 (the "Indenture"), between
the Company and First Trust National Association, as trustee (the "Trustee"), or
an indenture (the "Exchange Notes Indenture") between the
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Company and the Trustee or such other bank or trust company reasonably
satisfactory to you, as trustee (the "Exchange Notes Trustee"), such indenture
to be identical in all material respects with the Indenture except for the
interest rate increase provisions and the transfer restrictions relating to the
Securities (as described above).
Upon 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 electing to
exchange Securities for Exchange Notes (assuming that such Holder is not an
affiliate of the Company within the meaning of the 1933 Act, acquires the
Exchange Notes in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the Exchange
Notes) to trade such Exchange Notes from and after their receipt without any
limitations or restrictions under the 1933 Act and without material restrictions
under the securities laws of a substantial proportion of the several states of
the United States. Notwithstanding the foregoing, the Initial Purchasers and the
Company acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the 1933 Act, and in the absence of an
applicable exemption therefrom, (i) each Holder (including any Initial
Purchaser) which is a broker-dealer electing to exchange Securities, acquired
for its own account as a result of market-making activities or other trading
activities, for Exchange Notes (an "Exchanging Dealer"), is required to deliver
a prospectus containing the information set forth in Annex A hereto on the
cover, in Annex B hereto in "The Exchange Offer" section, and in Annex C hereto
in the "Plan of Distribution" section of such prospectus in connection with a
sale of any such Exchange Notes received by such Exchanging Dealer pursuant to
the Registered Exchange Offer and (ii) each Initial Purchaser which elects to
sell Exchange Notes acquired in exchange for Securities constituting any portion
of an unsold allotment is required to deliver a prospectus, containing the
information required by Items 507 and/or 508 of Regulation S-K under the 1933
Act, as applicable, in connection with such a sale.
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 than
30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(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;
(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 in all respects with all applicable laws.
As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(a) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities Exchange Notes equal in principal amount to the Securities
of such Holder so accepted for exchange.
Original issue discount on each Exchange Note will accrue from the last
Semi-Annual Accrual Date (as such term is defined in the Indenture) of the
Securities surrendered in exchange therefor or, if prior to November 15, 1997,
from the date original issue discount began to accrue on the Securities.
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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 1933 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 necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading.
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 Notes 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 Notes within the meaning of the 1933 Act,
(iii) such Holder is not an "affiliate," as defined in Rule 405 under the 1933
Act, of the Company or if it is an affiliate, such Holder acknowledges that it
must comply with the registration and prospectus delivery requirements of the
1933 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, a distribution of
the Exchange Notes and (v) if such Holder is a broker-dealer, that it will
receive Exchange Notes in exchange for 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 Notes.
In the event that any Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the Registered
Exchange Offer with respect to the exchange of Securities constituting any
portion of an unsold allotment, as soon as practicable upon receipt by the
Company of an opinion of outside counsel for such Initial Purchaser, reasonably
satisfactory in form and substance to outside counsel of the Company, to the
effect that such exchange does not require compliance with the registration
requirements under the 1933 Act, the Company shall issue and deliver to such
Initial Purchaser, in exchange for such Securities, a like principal amount of
Exchange Notes.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines that it is not permitted to effect the Registered Exchange Offer as
contemplated by Section 1 hereof, (ii) for any other reason the Registered
Exchange Offer is not consummated by November 17, 1997, (iii) any Initial
Purchaser so requests with respect to Securities held by it following
consummation of the Registered Exchange Offer, (iv) any Holder (other than an
Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer or, in the case of any Initial Purchaser that participates in the
Registered Exchange Offer or acquires Exchange Notes pursuant to the last
paragraph of Section 1 hereof, such Initial Purchaser does not receive freely
tradeable Exchange Notes in exchange for exchanged Securities constituting any
portion of an unsold allotment (it being understood that the requirement that an
Initial Purchaser deliver a prospectus in connection with sales of Exchange
Notes acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities,
shall not result in such Exchange Notes not being "freely tradeable" for
purposes of this Section 2) or (v) the Company so elects, the following
provisions shall apply:
(a) The Company shall as promptly as practicable file with the
Commission and thereafter shall use its best efforts to cause to be
declared effective a registration statement on an appropriate form
under the 1933 Act relating to the offer and sale of the Securities by
the Holders or the Exchange Notes by the Initial Purchasers, as
applicable, from time to time in accordance with the methods of
distribution elected by such Holders or the Initial Purchasers, as
applicable, and set forth in such registration statement (hereafter, a
"Shelf Registration Statement" and, together with any Exchange Offer
Registration Statement, a "Registration Statement").
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders or the
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Initial Purchasers, as applicable, for a period of two years from
the date the Shelf Registration Statement is declared effective by the
Commission or such shorter period that will terminate when all the
Securities or Exchange Notes, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Registration
Statement or when, in the opinion of outside counsel to the Company,
which is reasonably satisfactory in form and substance to counsel for
the Initial Purchasers, all such Securities may be sold without
registration under the 1933 Act and unlegended certificates
representing the Securities may be given to the holders thereof (in any
such case, such period being called the "Shelf Registration Period").
The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period
if it voluntarily takes any action that would result in Holders of
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 thereafter
complies with the requirements of Section 4(j) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Company
will ensure that (i) any Shelf Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) any Shelf 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
Shelf 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 necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
3. Additional Interest. If (a) by July 7, 1997, a Registration
Statement has not been filed with the SEC with respect to the Registered
Exchange Offer or the resale of the Securities, interest will accrue (in
addition to the accretion of original issue discount) on the Securities from and
including such date, until but excluding the earlier of (i) the date such
Registration Statement is filed and (ii) November 17, 1997 and (b) by November
17, 1997, neither (i) the Registered Exchange Offer is consummated nor (ii) a
Shelf Registration Statement is declared effective, interest will accrue (in
addition to the accrual of original issue discount) on the Securities from and
including such date, until but excluding the earlier of (i) the consummation of
the Registered Exchange Offer and (ii) the effective date of a Shelf
Registration Statement. In each case, such interest will be payable in cash
semiannually in arrears on May 15 and November 15 commencing November 15, 1997,
at a rate per annum equal to .50% of the Accreted Value (as such term is defined
in the Indenture) as of the November 15 and May 15 (or May 20, in the case of
the first interest payment date) immediately preceding such interest payment
date.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to the Initial Purchasers,
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 shall use its best
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers reasonably may
propose, (ii) include the information set forth in Annex A hereto on
the cover, in Annex B hereto in "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, and
(iii) if requested by the Initial Purchasers, include the information
required by Items 507 and/or 508 of Regulation S-K under the 1933 Act,
as applicable, in the prospectus forming a part of the Registration
Statement; and (iv) in the case of a Shelf Registration Statement,
include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement, as selling security
holders.
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(b) (1) the Company shall advise you and, in the case of a
Shelf Registration Statement, the Holders of Securities included
therein, and, if requested by you or any such Holder, confirm such
advice in writing:
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information.
(2) The Company shall advise you (which notice pursuant to
clause (iii) below shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been made)
and, in the case of a Shelf Registration Statement, the Holders of
Securities included therein, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer which has provided in
writing to the Company a telephone or facsimile number or address for
notices, and, if requested by you or any such Holder or Exchanging
Dealer, confirm such advice in writing;
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
prospectus so that, as of such date, the statements therein
are not misleading and do not 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
(which advice shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes
have been made).
(c) The Company will make every reasonable effort to obtain
the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(d) The Company will furnish to each Holder of Securities
included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing,
all exhibits (including those incorporated by reference).
(e) The Company will, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use
of the prospectus or any amendment or supplement thereto by each of the
selling Holders of Securities in connection with the offering and sale
of the Securities covered by the prospectus or any amendment or
supplement thereto.
(f) The Company will furnish to each Exchanging Dealer or
Initial Purchaser, as applicable, which 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 the Exchanging Dealer or Initial Purchaser, as
applicable, so requests in writing, all exhibits (including those
incorporated by reference).
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(g) The Company will, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as
many copies of the prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such
Exchanging Dealer in connection with a sale of Exchange Notes received
by it pursuant to the Registered Exchange Offer; and the Company
consents to the use of the prospectus or any amendment or supplement
thereto by any such Exchanging Dealer, as aforesaid.
(h) Prior to any public offering of securities pursuant to any
Shelf Registration Statement, the Company will register or qualify or
cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or qualification
of such securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any such Holder 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 Shelf Registration Statement; provided, however, that
the Company will not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
(i) The Company will cooperate with the Holders of Securities
to facilitate the timely preparation and delivery of certificates
representing Securities to be sold pursuant to any Shelf Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales of
Securities pursuant to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
(b)(2)(iii) above, the Company will promptly prepare a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities included therein, the
prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Securities or Exchange Notes, as the case may be, and provide the
applicable trustee with printed certificates for the Securities or
Exchange Notes, as the case may be, in a form eligible for deposit with
The Depository Trust Company.
(l) The Company will comply with all applicable rules and
regulations of the Commission and will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the 1933 Act.
(m) The Company will cause the Indenture or the Exchange Notes
Indenture, as the case may be, to be qualified under the Trust
Indenture Act of 1939, as amended, in a timely manner.
(n) The Company may require each Holder of the Securities to
be sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the holder and the distribution of
such Securities as the Company may from time to time reasonably require
for inclusion in such Registration Statement, and the Company may
exclude from such Registration Statement 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 if requested an underwriting agreement in customary form)
and take all such other action, if any, as any Holder shall reasonably
request in order to facilitate the disposition of the Securities
pursuant to any Shelf Registration Statement.
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(p) In the case of any Shelf Registration Statement, the
Company shall (i) make reasonably available for inspection by the
Holders, and any underwriter participating in any disposition pursuant
to a Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney, accountant
or agent in connection with any such Registration Statement.
(q) In the case of any Exchange Offer Registration Statement,
the Company shall (i) make reasonably available for inspection by the
Initial Purchasers, but in each case only in such firm's capacity as an
Exchanging Dealer and with the express understanding that each such
firm shall be acting solely for itself and not on behalf of any other
party, including, without limitation, any other Exchanging Dealer, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers,
directors and employees to supply all information reasonably requested
by any of them.
(r) In the case of any Shelf Registration Statement, the
Company, if requested by any Holders, shall cause (x) its counsel to
deliver an opinion relating to the Securities included within the
coverage of such Shelf Registration Statement in customary form, (y)
its officers to execute and deliver all customary documents and
certificates requested by any underwriters of the Securities and (z)
its independent public accountants to provide to the selling Holders
and any underwriter therefor a comfort letter in customary form.
(s) In the case of any Exchange Offer Registration Statement,
the Company, if requested by the Initial Purchasers, but in each case
only in such firm's capacity as an Exchanging Dealer and with the
express understanding that each such firm shall be acting solely for
itself and not on behalf of any other party, including, without
limitation, any other Exchanging Dealer, in connection with any
prospectus delivery as contemplated in paragraph (g) above, shall use
its best efforts to cause, on and as of the effective date of the
Exchange Offer Registration Statement, (x) its counsel to deliver an
opinion relating to the Exchange Offer Registration Statement and the
Exchange Notes in customary form, (y) its officers to execute and
deliver all customary documents and certificates requested and (z) its
independent public accountants to provide a comfort letter in customary
form, subject to receipt of appropriate documentation (including the
delivery of a customary representation letter), as contemplated by
Statement on Auditing Standards No. 72.
5. Registration Expenses. The Company will bear all expenses incurred
in connection with the performance of its obligations under Sections 1, 2, 3 and
4 hereof and, in the event of any Shelf Registration Statement, will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Holders of a majority in principal amount of the Securities to
be registered thereunder to act as counsel for the Holders in connection
therewith, and, in the case of any Exchange Offer Registration Statement, will
reimburse the Initial Purchasers, as applicable, for the reasonable fees and
disbursements of counsel in connection therewith.
6. Indemnification.
(a) In the event of a Shelf Registration or in connection with
any prospectus delivery pursuant to a Registered Exchange Offer by an
Exchanging Dealer as contemplated in Section 4(g) above, the Company
shall indemnify and hold harmless each Holder and each person, if any,
who controls such Holder within the meaning of Section 15 of the 1933
Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "1934 Act") as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any such Registration Statement or any
prospectus forming part thereof or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary
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to make the statements therein (in the case of any
prospectus, in the light of the circumstances under which they
were made) not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental or
regulatory agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees
and disbursements of counsel chosen by the indemnified party)
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental or regulatory agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission;
provided, however, that (i) this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by the indemnified party expressly for use in
such Registration Statement and (ii) such indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Holder (or
any person controlling such Holder) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which
are the subject thereof if such person did not receive a copy of the
final prospectus (or the final prospectus as supplemented) at or prior
to the confirmation of the sale of such Securities to such person and
(A) the untrue statement or omission of a material fact contained in
such preliminary prospectus was corrected in the final prospectus (or
the final prospectus as supplemented) and (B) such Holder had
previously been furnished by or on behalf of the Company (prior to the
date of mailing by such Holder of the applicable confirmation) with a
sufficient number of copies of the final prospectus as so amended or
supplemented.
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Company, its directors and
officers and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) in reliance on and
in conformity with written information furnished to the Company by such
Holder expressly for use in the Registration Statement (or in such
amendment or supplement); provided, however, that no such Holder shall
be liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of securities
pursuant to the Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have
otherwise than on account of this indemnity agreement, except to the
extent actually prejudiced thereby. If any such claim or action shall
be brought against an indemnified party, the indemnified party shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof (other than reasonable costs of investigation);
provided, however, if the defendants in any such action include both an
indemnified party and an indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties that
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are different from or additional to those available to the indemnifying
party, the indemnified party or parties under this Section 6 shall have
the right to employ not more than one counsel to represent them and, in
that event, the fees and expenses of not more than one such separate
counsel shall be paid by the indemnifying party, as such expenses are
incurred. No indemnifying party shall be liable for any settlement
effected without its written consent of any claim or action. An
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) To provide for just and equitable contribution in
circumstances in which the indemnity provided for in Section 6(a)-6(c)
hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company
and the applicable Holder or Holders shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity incurred by the Company and such Holder
or Holders, as incurred, in such proportions that the Company is
responsible for that portion represented by the percentage that the
aggregate consideration received by the Company from the sale by it of
the Securities sold by such Holder bears to the aggregate principal
amount of Securities sold by such Holder and such Holder is responsible
for the balance; provided, however, that no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) by a court of competent jurisdiction shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person, if any,
who controls a Holder within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to
contribution as such Holder and each director and officer of the
Company and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 6 shall survive
the sale of the Securities pursuant to a Registration Statement and
shall remain in full force and effect, regardless of any termination of
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
7. Miscellaneous.
(a) 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, unless the Company has obtained the
written consent of Holders of a majority in aggregate principal amount of the
Securities.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
7(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture
(or the Exchange Notes Indenture), with a copy in like manner to the
Initial Purchasers;
(2) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement, with copies
to the parties specified therein; and
(3) if to the Company, initially at the address set forth
in the Purchase Agreement, with copies to the parties specified
therein.
All such notices and communications shall be deemed to have been duly
given when received.
9
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(c) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
(d) 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.
(e) Headings. The headings in this agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Specified times of day refer to New York City time.
10
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
XXXXXXX ESCROW CORP.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED
as of the date first above written:
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Senior Managing Director
CHASE SECURITIES INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Managing Director
ANNEX A TO REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer (as defined herein) must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the 1933 Act. This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Securities
where such Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the expiration of the Registered Exchange
Offer, it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
A-1
ANNEX B TO REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
B-1
ANNEX C TO REGISTRATION AGREEMENT
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that for a period of 180 days after the expiration of the Registered Exchange
Offer, it will make this Prospectus, as amended or supplemented, available to
any broker-dealer for use in connection with any such resale. In addition, until
____________, 199_, all dealers effecting transactions in the Exchange Notes may
be required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Registered Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Notes may
be deemed to be an "underwriter" within the meaning of the 1933 Act and any
profit on any such resale of Exchange Notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the 1933 Act. The Letter of Transmittal states that, by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the 1933 Act.
For a period of 180 days after the expiration of the Registered
Exchange Offer, the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Registered Exchange Offer
other than commissions or concessions of any brokers or dealers and will
indemnify the holders of the Securities (including any broker-dealers) against
certain liabilities, including liabilities under the 1933 Act.
--------
(1.) The legend required by Item 502(e) of Regulation S-K must appear
on the back page of the Exchange Offer Prospectus.
C-1
ANNEX D TO REGISTRATION AGREEMENT
Rider A
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Securities, it represents that the
Securities to be exchanged for Exchange Notes were acquired by it as a result of
market-making or other trading activities and acknowledges that it will deliver
a prospectus in connection with any resale of such Exchange Notes; however, by
so acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the 1933 Act.
D-1
