===============================================================================
EXECUTION COPY
9-1/8% SENIOR SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
Dated as of November 25, 1998
by and among
SFX ENTERTAINMENT, INC.,
AS ISSUER,
THE GUARANTORS
and
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX BROTHERS INC.,
BANCBOSTON XXXXXXXXX XXXXXXXX INC., AND
BNY CAPITAL MARKETS, INC.
===============================================================================
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of November 25, 1998, by and among SFX Entertainment, Inc., a
Delaware corporation (the "COMPANY"), the Guarantors (as defined in the
Purchase Agreement (as defined below)), and Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxx Brothers Inc., BancBoston Xxxxxxxxx Xxxxxxxx Inc., and BNY Capital
Markets, Inc. (each an "INITIAL PURCHASER" and, collectively, the "INITIAL
PURCHASERS"), each of whom has agreed to purchase the Company's 9-1/8% Senior
Subordinated Notes due 2008 (the "SERIES A NOTES") pursuant to the Purchase
Agreement, dated November 19, 1998 (the "PURCHASE AGREEMENT").
This Agreement is made pursuant to the Purchase Agreement, by and
among the Company, the Guarantors and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Series A Notes (as defined
below), the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 8 of the
Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, dated November 25,
1998, between the Company and The Chase Manhattan Bank, as Trustee, relating to
the Series A Notes and the Series B Notes (the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Definitive Notes, as defined in the
Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Series B Notes in the same
aggregate principal amount as the aggregate principal amount of Series A Notes
tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
1
Exchange Offer: The exchange and issuance by the Company of a
principal amount of Series B Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal
amount of Series A Notes that are tendered by such Holders in connection with
such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Series A Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act and pursuant to Regulation S
under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Guarantors: The Company's subsidiaries as listed on Schedule 1 of the
Purchase Agreement and listed as Guarantors.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Old Notes: The Company's 9-1/8% Senior Subordinated Notes due February
1, 2008.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and
the Guarantors relating to (a) an offering of Series B Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Restricted Broker-Dealer: Any Broker-Dealer that holds Series B Notes
that were acquired in the Exchange Offer in exchange for Series A Notes that
such Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Series A Notes acquired
directly from the Company or any of its affiliates).
Rule 144: Rule 144 promulgated under the Act.
2
Series A Notes: The Company's 9-1/8% Senior Subordinated Notes due
2008 to be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii)
as contemplated by Section 4 hereof.
Series B Notes: The Company's 9-1/8% Senior Subordinated Notes due
2008 to be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii)
as contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the earliest to occur
of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Act, (b) the date on which
such Note has been disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Note is disposed of by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein)
or (d) the date on which such Note is distributed to the public pursuant to
Rule 144 under the Act.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be
permitted by applicable federal law (after
the procedures set forth in Section 6(a)(i)
below have been complied with), the Company
and the Guarantors shall (i) cause the
Exchange Offer Registration Statement to be
filed with the Commission as soon as
practicable after the Closing Date (the
"EXCHANGE OFFER FILING DATE"), but in no
event later than 100 days after the Closing
Date (such 100th day being the "FILING
DEADLINE"), (ii) use its best efforts to
cause such Exchange Offer Registration
Statement to become effective at the
earliest possible time, but in no event
later than 145 days after the Closing Date
(such 145th day being the "EFFECTIVENESS
DEADLINE"), (iii) in connection with the
foregoing, (A) file all pre-effective
amendments to such Exchange Offer
Registration Statement as may be necessary
in order to cause it to become effective,
(B) file, if applicable, a post-effective
amendment to such Exchange Offer
Registration Statement pursuant to Rule
430A under the Act and (C) cause all
necessary filings,
3
if any, in connection with the registration
and qualification of the Series B Notes to
be made under the Blue Sky laws of such
jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such
Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer.
The Exchange Offer shall be on the
appropriate form permitting registration of
the Series B Notes to be offered in
exchange for the Series A Notes that are
Transfer Restricted Securities and to
permit resales of Series B Notes by
Broker-Dealers that tendered into the
Exchange Offer for Series A Notes that such
Broker-Dealer acquired for its own account
as a result of market making activities or
other trading activities (other than Series
A Notes acquired directly from the Company
or any of its Affiliates) as contemplated
by Section 3(c) below.
(b) The Company and the Guarantors shall use
their respective best efforts to cause the
Exchange Offer Registration Statement to be
effective continuously, and shall keep the
Exchange Offer open for a period of not
less than the minimum period required under
applicable federal and state securities
laws to Consummate the Exchange Offer;
provided, however, that in no event shall
such period be less than 20 Business Days.
The Company and the Guarantors shall cause
the Exchange Offer to comply with all
applicable federal and state securities
laws. No securities other than the Series B
Notes shall be included in the Exchange
Offer Registration Statement. The Company
and the Guarantors shall use their
respective reasonable best efforts to cause
the Exchange Offer to be Consummated on the
earliest practicable date after the
Exchange Offer Registration Statement has
become effective, but in no event later
than 30 Business Days thereafter.
(c) The Company shall include a "Plan of
Distribution" section in the Prospectus
contained in the Exchange Offer
Registration Statement and indicate therein
that any Broker-Dealer who holds Transfer
Restricted Securities that were acquired
for the account of such Broker-Dealer as a
result of market-making activities or other
trading activities (other than Transfer
Restricted Securities acquired directly
from the Company or any Affiliate of the
Company), may exchange such Transfer
Restricted Securities pursuant to the
Exchange Offer;
4
however, such Broker-Dealer may be deemed
to be an "underwriter" within the meaning
of the Act and must, therefore, deliver a
prospectus meeting the requirements of the
Act in connection with its initial sale of
any Series B Notes received by such
Broker-Dealer in the Exchange Offer and
that the Prospectus contained in the
Exchange Offer Registration Statement may
be used to satisfy such prospectus delivery
requirement. Such "Plan of Distribution"
section shall also contain all other
information with respect to such sales by
such Broker-Dealers that the Commission may
require in order to permit such sales
pursuant thereto, but such "Plan of
Distribution" shall not name any such
Broker-Dealer or disclose the amount of
Transfer Restricted Securities held by any
such Broker-Dealer, except to the extent
required by the Commission as a result of a
change in policy, rules or regulations
after the date of this Agreement. See the
Shearman & Sterling no-action letter
(available July 2, 1993).
To the extent necessary to ensure that the Exchange Offer Registration
Statement is available for sales of Series B Notes by Broker-Dealers, the
Company and the Guarantors agree to use their respective best efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 180 days from the date on which the Exchange Offer is Registration
Statement is declared effective, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration Statement have
been sold pursuant thereto. The Company and the Guarantors shall promptly
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers promptly upon request, and in no event later than one day after
such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange
Offer is not permitted by applicable law
(after the Company and the Guarantors have
complied with the procedures set forth in
Section 6(a)(i) below) or (ii) if any
Holder of Transfer Restricted Securities
shall notify the Company within 20 Business
Days following the Consummation of the
Exchange Offer that (A) such Holder was
prohibited by law or Commission policy from
participating in the Exchange Offer or (B)
such Holder may not resell the Series B
Notes acquired by it in the Exchange Offer
to the public without delivering a
prospectus and the Prospectus contained in
the Exchange Offer Registration Statement
is not appropriate or available for such
resales
5
by such Holder or (C) such Holder is a
Broker-Dealer and holds Series A Notes
acquired directly from the Company or any
of its Affiliates, then the Company and the
Guarantors shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer Registration
Statement cannot be filed as a result of clause (a)(i) above and (ii) the date
on which the Company receives the notice specified in clause (a) (ii) above,
(such earlier date, the "FILING DEADLINE"), a shelf registration statement
pursuant to Rule 415 under the Act (which may be an amendment to the Exchange
Offer Registration Statement (the "SHELF REGISTRATION STATEMENT")), relating to
all Transfer Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof, and
(y) shall use their respective reasonable best efforts to cause such
Shelf Registration Statement to become effective on or prior to 90 days after
the Filing Deadline (such 90th day the "EFFECTIVENESS DEADLINE").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law, then
the filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above; provided that, in such event, the
Company shall remain obligated to meet the Effectiveness Deadline set forth in
clause (y).
The Company and the Guarantors shall use their respective reasonable
best efforts to keep any Shelf Registration Statement required by this Section
4(a) continuously effective, supplemented and amended as required by and
subject to the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for sales of Transfer Restricted
Securities by the Holders thereof entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from
time to time, for a period of at least two years (as extended pursuant to
Section 6(c)(i)) following the date on which such Shelf Registration Statement
first becomes effective under the Act, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold pursuant thereto.
(b) Provision by Holders of Certain Information
in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer
Restricted Securities in any Shelf
Registration Statement pursuant to this
Agreement unless and until such Holder
furnishes to the Company in writing, within
20 days after receipt of a request
therefor, the information specified in Item
507 or 508 of Regulation S-K, as
applicable, of the Act for use in
connection with any Shelf Registration
Statement or Prospectus or preliminary
Prospectus included therein. No Holder of
Transfer Restricted Securities shall be
entitled to liquidated damages pursuant to
Section 5
6
hereof unless and until such Holder shall
have provided all such information. Each
selling Holder agrees to promptly furnish
additional information required to be
disclosed in order to make the information
previously furnished to the Company by such
Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Exchange Offer Registration Statement is first declared effective by the
Commission or (iv) any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded within two
Business Days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective within two Business
Days of its filing (each such event referred to in clauses (i) through (iv), a
"REGISTRATION DEFAULT"), then the Company and the Guarantors hereby jointly and
severally agree to pay to each Holder of Transfer Restricted Securities
affected thereby liquidated damages in an amount equal to $.05 per week per
$1,000 in principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration Default continues
for the first 90-day period immediately following the occurrence of such
Registration Default. The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.50
per week per $1,000 in principal amount of Transfer Restricted Securities;
provided that the Company and the Guarantors shall in no event be required to
pay liquidated damages for more than one Registration Default at any given
time. Notwithstanding anything to the contrary set forth herein, (1) upon
filing of the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4)
upon the filing of a post-effective amendment to the Registration Statement or
an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or made usable in the case of (iv)
above, the liquidated damages payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii), (iii) or (iv), as applicable,
shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture,
on each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
7
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the
Company and the Guarantors shall comply
with all applicable provisions of Section
6(c) below, shall use their respective best
efforts to effect such exchange and to
permit the resale of Series B Notes by
Broker-Dealers that tendered in the
Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account
as a result of its market making activities
or other trading activities (other than
Series A Notes acquired directly from the
Company or any of its Affiliates) being
sold in accordance with the intended method
or methods of distribution thereof, and
shall comply with all of the following
provisions:
(i) If, following the date hereof
there has been announced a change
in Commission policy with respect
to exchange offers such as the
Exchange Offer that, in the
reasonable opinion of counsel to
the Company raises a substantial
question as to whether the
Exchange Offer is permitted by
applicable federal law, the
Company and the Guarantors hereby
agree to seek a no-action letter
or other favorable decision from
the Commission allowing the
Company and the Guarantors to
Consummate an Exchange Offer for
such Transfer Restricted
Securities. The Company and the
Guarantors hereby agree to pursue
the issuance of such a decision to
the Commission staff level but
shall not be required to take
commercially unreasonable action
to effect a change in Commission
policy. In connection with the
foregoing, the Company and the
Guarantors hereby agree to take
all such other actions as may be
requested by the Commission or
otherwise required in connection
with the issuance of such
decision, including without
limitation (A) participating in
telephonic conferences with the
Commission, (B) delivering to the
Commission staff an analysis
prepared by counsel to the Company
setting forth the legal bases, if
any, upon which such counsel has
concluded that such an Exchange
Offer should be permitted and (C)
diligently pursuing a resolution
(which need not be favorable) by
the Commission staff.
8
(ii) As a condition to its
participation in the Exchange
Offer, each Holder of Transfer
Restricted Securities (including,
without limitation, any Holder who
is a Broker Dealer) shall furnish,
upon the request of the Company,
prior to the Consummation of the
Exchange Offer, a written
representation to the Company and
the Guarantors (which may be
contained in the letter of
transmittal contemplated by the
Exchange Offer Registration
Statement) to the effect that (A)
it is not an Affiliate of the
Company, (B) it is not engaged in,
and does not intend to engage in,
and has no arrangement or
understanding with any person to
participate in, a distribution of
the Series B Notes to be issued in
the Exchange Offer and (C) it is
acquiring the Series B Notes in
its ordinary course of business.
In addition, all such Holders of
Transfer Restricted Securities
shall otherwise reasonably
cooperate with any reasonable
request of the Company relating to
the Company's and Guarantors'
preparation of the Exchange Offer
Registration Statement. Each
Holder using the Exchange Offer to
participate in a distribution of
the Series B Notes hereby
acknowledges and agrees that, if
the resales are of Series B Notes
obtained by such Holder in
exchange for Series A Notes
acquired directly from the Company
or an Affiliate thereof, it (1)
could not, under Commission policy
as in effect on the date of this
Agreement, rely on the position of
the Commission enunciated in
Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon
Capital Holdings Corporation
(available May 13, 1988), as
interpreted in the Commission's
letter to Shearman & Sterling
dated July 2, 1993, and similar
no-action letters (including, if
applicable, any no-action letter
obtained pursuant to clause (i)
above), and (2) must comply with
the registration and prospectus
delivery requirements of the Act
in connection with a secondary
resale transaction and that such a
secondary resale transaction must
be covered by an effective
registration statement containing
the selling security holder
information required by Item 507
or 508, as applicable, of
Regulation S-K.
9
(iii) Prior to effectiveness of the
Exchange Offer Registration
Statement, the Company and the
Guarantors shall provide a
supplemental letter to the
Commission (A) stating that the
Company and the Guarantors are
registering the Exchange Offer in
reliance on the position of the
Commission enunciated in Exxon
Capital Holdings Corporation
(available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc. (available
June 5, 1991) as interpreted in
the Commission's letter to
Shearman & Sterling dated July 2,
1993, and, if applicable, any
no-action letter obtained pursuant
to clause (i) above, (B) including
a representation that neither the
Company nor any Guarantor has
entered into any arrangement or
understanding with any Person to
distribute the Series B Notes to
be received in the Exchange Offer
and that, to the best of the
Company's and each Guarantor's
information and belief, each
Holder participating in the
Exchange Offer is acquiring the
Series B Notes in its ordinary
course of business and has no
arrangement or understanding with
any Person to participate in the
distribution of the Series B Notes
received in the Exchange Offer and
(C) any other undertaking or
representation required by the
Commission as set forth in any
no-action letter obtained pursuant
to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection
with the Shelf Registration Statement, the
Company and the Guarantors shall comply
with all the provisions of Section 6(c)
below and shall use their respective
reasonable best efforts to effect such
registration to permit the sale of the
Transfer Restricted Securities being sold
in accordance with the intended method or
methods of distribution thereof (as
indicated in the information furnished to
the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company
and the Guarantors will prepare and file
with the Commission a Registration
Statement relating to the registration on
any appropriate form under the Act, which
form shall be available for the sale of the
Transfer Restricted Securities in
accordance with the intended method or
methods of distribution thereof, within the
10
time periods and otherwise in accordance
with the provisions hereof.
(c) General Provisions. In connection with any
Registration Statement and any related
Prospectus required by this Agreement, the
Company and the Guarantors shall:
(i) use their respective reasonable best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in Section 3
or 4 of this Agreement, as applicable. Upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement,
the Company and the Guarantors shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use their respective reasonable best
efforts to cause such amendment to be declared effective as soon as
practicable. Notwithstanding the foregoing, if the Board of Directors
of the Company determines in good faith that it is in the best
interests of the Company and the Guarantors not to disclose the
existence of or facts surrounding any proposed or pending material
corporate transaction involving the Company or the Guarantors, the
Company and the Guarantors may allow the Shelf Registration Statement
or the Exchange Offer Registration Statement to fail to be effective
and usable as a result of such nondisclosure for up to 120 days during
the three year period of effectiveness required by Section 4 hereof,
but in no event (x) for any period in excess of 45 consecutive days or
(y) for more than 60 days in any calendar year, provided, that in the
event the Exchange Offer is Consummated, the Company and the
Guarantors shall not allow the Exchange Offer Registration Statement
to fail to be effective and usable for a period in excess of 30 days
during the one year period of effectiveness required by Section 3
hereof;
(i) prepare and file with the
Commission such amendments and
post-effective amendments to the
applicable Registration Statement
as may be necessary to keep such
Registration Statement effective
for the applicable period set
forth in Section 3 or 4 hereof, as
the case may be; cause the
Prospectus to be supplemented by
any required Prospectus
supplement, and as so supplemented
to be filed pursuant to Rule 424
under the Act, and to comply fully
with Rules 424, 430A and 462, as
applicable, under the Act in a
timely manner; and comply with the
provisions of the Act with respect
to the disposition of all
securities covered by such
Registration Statement during the
applicable period in accordance
with the intended method or
methods of distribution by the
sellers thereof set forth in such
Registration Statement or
supplement to the Prospectus;
11
(ii) advise the selling Holders
promptly and, if requested by such
Persons, confirm such advice in
writing, (A) when the Prospectus
or any Prospectus supplement or
post-effective amendment has been
filed, and, with respect to any
applicable Registration Statement
or any post-effective amendment
thereto, when the same has become
effective, (B) of any request by
the Commission for amendments to
the Registration Statement or
amendments or supplements to the
Prospectus or for additional
information relating thereto, (C)
of the issuance by the Commission
of any stop order suspending the
effectiveness of the Registration
Statement under the Act or of the
suspension by any state securities
commission of the qualification of
the Transfer Restricted Securities
for offering or sale in any
jurisdiction, or the initiation of
any proceeding for any of the
preceding purposes, (D) of the
existence of any fact or the
happening of any event that makes
any statement of a material fact
made in the Registration
Statement, the Prospectus, any
amendment or supplement thereto or
any document incorporated by
reference therein untrue, or that
requires the making of any
additions to or changes in the
Registration Statement in order to
make the statements therein not
misleading, or that requires the
making of any additions to or
changes in the Prospectus in order
to make the statements therein, in
the light of the circumstances
under which they were made, not
misleading. If at any time the
Commission shall issue any stop
order suspending the effectiveness
of the Registration Statement, or
any state securities commission or
other regulatory authority shall
issue an order suspending the
qualification or exemption from
qualification of the Transfer
Restricted Securities under state
securities or Blue Sky laws, the
Company and the Guarantors shall
use their respective reasonable
best efforts to obtain the
withdrawal or lifting of such
order at the earliest possible
time;
(iii) subject to Section 6(c)(i), if any
fact or event contemplated by
Section 6(c)(iii)(D) above shall
12
exist or have occurred, prepare a
supplement or post-effective
amendment to the Registration
Statement or related Prospectus or
any document incorporated therein
by reference or file any other
required document so that, as
thereafter delivered to the
purchaser(s) of Transfer
Restricted Securities, the
Prospectus will not contain 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;
(iv) furnish to the Initial Purchasers
and each selling Holder named in
any Registration Statement or
Prospectus in connection with such
sale, if any, before filing with
the Commission, copies of any
Registration Statement or any
Prospectus included therein or any
amendments or supplements to any
such Registration Statement or
Prospectus (including all
documents incorporated by
reference after the initial filing
of such Registration Statement),
which documents will be subject to
the review and comment of such
Holders in connection with such
sale, if any, for a period of at
least three Business Days, and the
Company will not file any such
Registration Statement or
Prospectus or any amendment or
supplement to any such
Registration Statement or
Prospectus (including all such
documents incorporated by
reference) to which the selling
Holders of the Transfer Restricted
Securities covered by such
Registration Statement in
connection with such sale, if any,
shall reasonably object within
three Business Days after the
receipt thereof. A selling Holder
shall be deemed to have reasonably
objected to such filing if such
Registration Statement, amendment,
Prospectus or supplement, as
applicable, as proposed to be
filed, contains a material
misstatement or omission or fails
to comply with the applicable
requirements of the Act;
(v) promptly prior to the filing of
any document that is to be
incorporated by reference into a
Registration Statement or
Prospectus, provide
13
copies of such document to the
selling Holders in connection with
such sale, if any, make the
Company's and the Guarantors'
representatives available for
discussion of such document and
other customary due diligence
matters, and include such
information in such document prior
to the filing thereof as such
selling Holders may reasonably
request;
(vi) make available at reasonable times
for inspection by the selling
Holders participating in any
disposition pursuant to such
Registration Statement and any
attorney or accountant retained by
such selling Holders, all
financial and other records,
pertinent corporate documents of
the Company and the Guarantors and
cause the Company's and the
Guarantors' officers, directors
and employees to supply all
information reasonably requested
by any such selling Holder,
attorney or accountant in
connection with such Registration
Statement or any post-effective
amendment thereto subsequent to
the filing thereof and prior to
its effectiveness;
(vii) if requested by any selling
Holders in connection with such
sale, if any, promptly include in
any Registration Statement or
Prospectus, pursuant to a
supplement or post-effective
amendment if necessary, such
information as such selling
Holders may reasonably request to
have included therein, including,
without limitation, information
relating to the "Plan of
Distribution" of the Transfer
Restricted Securities; and make
all required filings of such
Prospectus supplement or
post-effective amendment as soon
as practicable after the Company
is notified of the matters to be
included in such Prospectus
supplement or post-effective
amendment;
(viii) furnish to each selling Holder in
connection with such sale, if any,
without charge, at least one copy
of the Registration Statement, as
first filed with the Commission,
and of each amendment thereto,
including all documents
incorporated by reference therein
and all
14
exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder,
without charge, as many copies of
the Prospectus (including each
preliminary prospectus) and any
amendment or supplement thereto as
such Persons reasonably may
request; the Company and the
Guarantors hereby consent to the
use (in accordance with law) of
the Prospectus and any amendment
or supplement thereto by each of
the selling Holders in connection
with the offering and the sale of
the Transfer Restricted Securities
covered by the Prospectus or any
amendment or supplement thereto;
(x) upon the request of any selling
Holder, enter into such agreements
(including underwriting
agreements) and make such
representations and warranties and
take all such other actions in
connection therewith in order to
expedite or facilitate the
disposition of the Transfer
Restricted Securities pursuant to
any applicable Registration
Statement contemplated by this
Agreement as may be reasonably
requested by any Holder of
Transfer Restricted Securities in
connection with any sale or resale
pursuant to any applicable
Registration Statement and in such
connection, the Company and the
Guarantors shall:
B. (A) upon request of any selling Holder, furnish (or in the case of
paragraphs (2) and (3), use its reasonable best efforts to cause to be
furnished) to each selling Holder, upon the effectiveness of the Shelf
Registration Statement or upon Consummation of the Exchange Offer, as
the case may be:
1. (1) a certificate, dated such date, signed on behalf of the
Company and each Guarantor by (x) the President or any Vice
President and (y) a principal financial or accounting officer
of the Company and such Guarantor, confirming, as of the date
thereof, the matters set forth in paragraphs (b), (d) and (e)
and the second sentence of paragraph (c) of Section 8 of the
Purchase Agreement and such other similar matters as the
selling Holders may reasonably request;
2. (2) an opinion, dated the date of Consummation of the
Exchange Offer, or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for
the Company and the Guarantors covering matters similar to
those set forth in paragraph (h) of Section 8 of the Purchase
Agreement and such other matter as the selling Holders may
reasonably request, and in any event including
15
a statement to the effect that such counsel has participated
in conferences with officers and other representatives of the
Company and the Guarantors, representatives of the
independent public accountants for the Company and the
Guarantors and have considered the matters required to be
stated therein and the statements contained therein, although
such counsel has not independently verified the accuracy,
completeness or fairness of such statements; and that such
counsel advises that, on the basis of the foregoing (relying
as to materiality to the extent such counsel deems
appropriate upon the statements of officers and other
representatives of the Company and the Guarantors) no facts
came to such counsel's attention that caused such counsel to
believe that the applicable Registration Statement (except as
to (a) financial statements, including the notes thereto, (b)
statistical data and (c) other financial and accounting data
(including, without limitation, the pro forma financial
information), in each case, included or omitted therefrom, as
to which no belief need be expressed), at the time such
Registration Statement or any post-effective amendment
thereto became effective and, in the case of the Exchange
Offer Registration Statement, as of the date of Consummation
of the Exchange Offer, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (except as to (a)
financial statements, including the notes thereto, (b)
statistical data and (c) other financial and accounting data
(including, without limitation, the pro forma financial
information), in each case, included or omitted therefrom, as
to which no belief need be expressed) contained in such
Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the Exchange Offer,
as of the date of Consummation, contained an untrue statement
of a material fact or omitted 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. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes
and schedules and other financial data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and
3. (3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the
case may be, from the Company's independent accountants, in
the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant
to Section 8(k) of the Purchase Agreement; and
C. (B) deliver such other documents and certificates as may be reasonably
requested by the selling Holders to evidence compliance with clause
(A) above and with any customary conditions contained in the Purchase
Agreement entered into by the Company and the Guarantors pursuant to
this clause (xi), if any;
16
(i) prior to any public offering of
Transfer Restricted Securities,
cooperate with the selling Holders
and their counsel in connection
with the registration and
qualification of the Transfer
Restricted Securities under the
securities or Blue Sky laws of
such jurisdictions as the selling
Holders may request and do any and
all other acts or things necessary
or advisable to enable the
disposition in such jurisdictions
of the Transfer Restricted
Securities covered by the
applicable Registration Statement;
provided, however, that neither
the Company nor any Guarantor
shall be required to register or
qualify as a foreign corporation
where it is not now so qualified
or to take any action that would
subject it to the service of
process in suits or to taxation,
other than as to matters and
transactions relating to the
Registration Statement, in any
jurisdiction where it is not now
so subject;
(ii) issue, upon the request of any
Holder of Series A Notes covered
by any Shelf Registration
Statement contemplated by this
Agreement, Series B Notes having
an aggregate principal amount
equal to the aggregate principal
amount of Series A Notes
surrendered to the Company by such
Holder in exchange therefor or
being sold by such Holder; such
Series B Notes to be registered in
the name of such Holder or in the
name of the purchaser(s) of such
Series B Notes, as the case may
be; in return, the Series A Notes
held by such Holder shall be
surrendered to the Company for
cancellation;
(iii) in connection with any sale of
Transfer Restricted Securities
that will result in such
securities no longer being
Transfer Restricted Securities,
cooperate with the selling Holders
to facilitate the timely
preparation and delivery of
certificates representing Transfer
Restricted Securities to be sold
and not bearing any restrictive
legends; and to register such
Transfer Restricted Securities in
such denominations and such names
as the selling Holders may request
at least two Business Days prior
to such sale of Transfer
Restricted Securities;
17
(iv) use their respective reasonable
best efforts to cause the
disposition of the Transfer
Restricted Securities covered by
the Registration Statement to be
registered with or approved by
such other governmental agencies
or authorities as may be necessary
to enable the seller or sellers
thereof to consummate the
disposition of such Transfer
Restricted Securities, subject to
the proviso contained in clause
(xii) above;
(v) provide a CUSIP number for all
Transfer Restricted Securities not
later than the effective date of a
Registration Statement covering
such Transfer Restricted
Securities and provide the Trustee
under the Indenture with printed
certificates for the Transfer
Restricted Securities which are in
a form eligible for deposit with
the Depository Trust Company;
(vi) otherwise use their respective
reasonable best efforts to comply
with all applicable rules and
regulations of the Commission, and
make generally available to its
security holders with regard to
any applicable Registration
Statement, as soon as practicable,
a consolidated earnings statement
meeting the requirements of Rule
158 (which need not be audited)
covering a twelve-month period
beginning after the effective date
of the Registration Statement (as
such term is defined in paragraph
(c) of Rule 158 under the Act);
(vii) cause the Indenture to be
qualified under the TIA not later
than the effective date of the
first Registration Statement
required by this Agreement and, in
connection therewith, cooperate
with the Trustee and the Holders
to effect such changes to the
Indenture as may be required for
such Indenture to be so qualified
in accordance with the terms of
the TIA; and execute and use its
best efforts to cause the Trustee
to execute, all documents that may
be required to effect such changes
and all other forms and documents
required to be filed with the
Commission to enable such
Indenture to be so qualified in a
timely manner; and
18
(viii) provide promptly to each Holder
upon request each document filed
with the Commission pursuant to
the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(b) Restrictions on Holders. Each Holder agrees
by acquisition of a Transfer Restricted
Security that, upon receipt of the notice
referred to in Section 6(c)(i) or any
notice from the Company of the existence of
any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will
forthwith discontinue disposition of
Transfer Restricted Securities pursuant to
the applicable Registration Statement until
(i) such Holder's has received copies of
the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or
(ii) such Holder is advised in writing by
the Company that the use of the Prospectus
may be resumed, and has received copies of
any additional or supplemental filings that
are incorporated by reference in the
Prospectus (in each case, the
"RECOMMENCEMENT DATE"). Each Holder
receiving a Suspension Notice hereby agrees
that it will either (i) destroy any
Prospectuses, other than permanent file
copies, then in such Holder's possession
which have been replaced by the Company
with more recently dated Prospectuses or
(ii) deliver to the Company (at the
Company's expense) all copies, other than
permanent file copies, then in such
Holder's possession of the Prospectus
covering such Transfer Restricted
Securities that was current at the time of
receipt of the Suspension Notice. The time
period regarding the effectiveness of such
Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be
extended by a number of days equal to the
number of days in the period from and
including the date of delivery of the
Suspension Notice to the date of delivery
of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and
the Guarantors' performance of or
compliance with this Agreement will be
borne by the Company, regardless of whether
a Registration Statement becomes effective,
including without limitation: (i) all
registration and filing fees and expenses;
(ii) all fees and expenses of compliance
with federal securities and state Blue Sky
or securities laws; (iii) all expenses of
printing (including
19
printing certificates for the Series B
Notes to be issued in the Exchange Offer
and printing of Prospectuses), messenger
and delivery services and telephone; (iv)
all fees and disbursements of counsel for
the Company, the Guarantors and the Holders
of Transfer Restricted Securities; (v) all
application and filing fees in connection
with listing the Series B Notes on a
national securities exchange or automated
quotation system pursuant to the
requirements hereof; and (vi) all fees and
disbursements of independent certified
public accountants of the Company and the
Guarantors (including the expenses of any
special audit and comfort letters required
by or incident to such performance) but
specifically excluding any transfer fees
and taxes, if any, relating to the sale and
disposition of Transfer Restricted
Securities by any Holder.
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Registration
Statement required by this Agreement
(including, without limitation, the
Exchange Offer Registration Statement and
the Shelf Registration Statement), the
Company and the Guarantors will reimburse
the Purchasers and the Holders of Transfer
Restricted Securities being tendered in the
Exchange Offer and/or resold pursuant to
the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or
registered pursuant to the Shelf
Registration Statement, as applicable, for
the reasonable fees and disbursements of
not more than one counsel, who shall be
Xxxxxx & Xxxxxxx, unless another firm shall
be chosen by the Holders of a majority in
principal amount of the Transfer Restricted
Securities for whose benefit such
Registration Statement is being prepared;
provided that such fees and disbursements
shall not exceed $25,000.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree,
jointly and severally, to indemnify and
hold harmless (i) each Holder and (ii) each
person, if any, who controls (within the
meaning of Section 15 of the Act or Section
20 of the Exchange Act) any Holder (any of
the persons referred to in this clause (ii)
being hereinafter referred to
20
as a "controlling person") and (iii) the
respective officers, directors, partners,
employees, representatives and agents of
any Holder or any controlling person (any
person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an
"INDEMNIFIED HOLDER"), from and against any
and all losses, claims, damages,
liabilities, judgments, (including without
limitation, any legal or other expenses
incurred in connection with investigating
or defending any matter, including any
action that could give rise to any such
losses, claims, damages, liabilities or
judgments) caused by any untrue statement
or alleged untrue statement of a material
fact contained in any Registration
Statement, preliminary prospectus or
Prospectus (or any amendment or supplement
thereto) provided by the Company to any
holder or any prospective purchaser of
Series B Notes, or caused by any omission
or alleged omission to state therein a
material fact required to be stated therein
or necessary to make the statements therein
not misleading, except insofar as such
losses, claims, damages, liabilities or
judgments are caused by an untrue statement
or omission or alleged untrue statement or
omission that is based upon information
furnished in writing to the Company by any
of the Holders.
(b) Each Holder of Transfer Restricted
Securities agrees, severally and not
jointly, to indemnify and hold harmless the
Company and the Guarantors, and their
respective directors, and officers,
partners, employees, representatives and
agents and each person, if any, who
controls (within the meaning of Section 15
of the Act or Section 20 of the Exchange
Act) the Company, or the Guarantors to the
same extent as the foregoing indemnity from
the Company and the Guarantors to each of
the Indemnified Holders, but only with
reference to information relating to such
Indemnified Holder furnished in writing to
the Company by such Indemnified Holder
expressly for use in any Registration
Statement. In no event shall any
Indemnified Holder be liable or responsible
for any amount in excess of the amount by
which the total amount received by such
Indemnified Holder with respect to its sale
of Transfer Restricted Securities pursuant
to a Registration Statement exceeds (i) the
amount paid by such Indemnified Holder for
such Transfer Restricted Securities and
(ii) the amount of any damages that such
Indemnified Holder has otherwise been
required to pay
21
by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced
involving any person in respect of which
indemnity may be sought pursuant to Section
8(a) or 8(b) (the "INDEMNIFIED PARTY"), the
indemnified party shall promptly notify the
person against whom such indemnity may be
sought (the "INDEMNIFYING PERSON") in
writing and the indemnifying party shall
assume the defense of such action,
including the employment of counsel
reasonably satisfactory to the indemnified
party and the payment of all fees and
expenses of such counsel, as incurred
(except that in the case of any action in
respect of which indemnity may be sought
pursuant to both Sections 8(a) and 8(b), an
Indemnified Holder shall not be required to
assume the defense of such action pursuant
to this Section 8(c), but may employ
separate counsel and participate in the
defense thereof, but the fees and expenses
of such counsel, except as provided below,
shall be at the expense of the Indemnified
Holder). Any indemnified party shall have
the right to employ separate counsel in any
such action and participate in the defense
thereof, but the fees and expenses of such
counsel shall be at the expense of the
indemnified party unless (i) the employment
of such counsel shall have been
specifically authorized in writing by the
indemnifying party, (ii) the indemnifying
party shall have failed to assume the
defense of such action or employ counsel
reasonably satisfactory to the indemnified
party or (iii) the named parties to any
such action (including any impleaded
parties) include both the indemnified party
and the indemnifying party, and the
indemnified party shall have been advised
by such counsel that there may be one or
more legal defenses available to it which
are different from or additional to those
available to the indemnifying party (in
which case the indemnifying party shall not
have the right to assume the defense of
such action on behalf of the indemnified
party). In any such case, the indemnifying
party shall not, in connection with any one
action or separate but substantially
similar or related actions arising out of
the same general allegations or
circumstances, be liable for the fees and
expenses of more than one separate firm of
attorneys (in addition to any local
counsel) for all indemnified parties and
all such fees and expenses shall be
reimbursed as they are incurred. Such firm
shall be designated in writing by a
22
majority of the Indemnified Holders, in the
case of the parties indemnified pursuant to
Section 8(a), and by the Company, in the
case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall
not be liable, shall not indemnify or hold
harmless the indemnified party from and
against any and all losses, claims,
damages, liabilities and judgments by
reason of any settlement of any action
effected without its written consent. No
indemnifying party shall, without the prior
written consent of the indemnified party,
effect any settlement or compromise of, or
consent to the entry of judgment with
respect to, any pending or threatened
action in respect of which the indemnified
party is or could have been a party and
indemnity or contribution may be or could
have been sought hereunder by the
indemnified party, unless such settlement,
compromise or judgment (i) includes an
unconditional release of the indemnified
party from all liability on claims that are
or could have been the subject matter of
such action and (ii) does not include a
statement as to or an admission of fault,
culpability or a failure to act, by or on
behalf of the indemnified party.
(d) To the extent that the indemnification
provided for in this Section 8 is
unavailable to an indemnified party in
respect of any losses, claims, damages,
liabilities or judgments referred to
therein, then each indemnifying party, in
lieu of indemnifying such indemnified
party, shall contribute to the amount paid
or payable by such indemnified party as a
result of such losses, claims, damages,
liabilities or judgments (i) in such
proportion as is appropriate to reflect the
relative benefits received by the Company
and the Guarantors, on the one hand, and
the Holders, on the other hand, from their
sale of Transfer Restricted Securities or
(ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law,
in such proportion as is appropriate to
reflect not only the relative benefits
referred to in clause 8(d)(i) above but
also the relative fault of the Company and
the Guarantors, on the one hand, and of the
Indemnified Holder, on the other hand, in
connection with the statements or omissions
which resulted in such losses, claims,
damages, liabilities or judgments, as well
as any other relevant equitable
considerations. The relative fault of the
Company and the Guarantors, on the one
hand, and of the Indemnified Holder, on the
other hand, shall be determined by
reference to, among other things,
23
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 or such Guarantor,
on the one hand, or by the Indemnified
Holder, on the other hand, and the parties'
relative intent, knowledge, access to
information and opportunity to correct or
prevent such statement or omission. The
amount paid or payable by a party as a
result of the losses, claims, damages,
liabilities and judgments referred to above
shall be deemed to include, subject to the
limitations set forth in the second
paragraph of Section 8(a), any legal or
other fees or expenses reasonably incurred
by such party in connection with
investigating or defending any action or
claim.
The Company, the Guarantors and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) 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 which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
matter, including any action that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, no Holder or its related Indemnified Holders shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of its Transfer
Restricted Securities pursuant to a Registration Statement exceeds the sum of
(A) the amount paid by such Holder for such Transfer Restricted Securities plus
(B) the amount of any damages which such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor is not subject to Section 13 or
15(d) of the Securities Exchange Act, to make available, upon request of any
Holder of Transfer Restricted Securities, to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10. MISCELLANEOUS
24
(a) Remedies. The Company and the Guarantors
acknowledge and agree that any failure by
the Company and/or the Guarantors to comply
with their respective obligations under
Sections 3 and 4 hereof may result in
material irreparable injury to the Initial
Purchasers 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 Purchasers
or any Holder may obtain such relief as may
be required to specifically enforce the
Company's and the Guarantor's obligations
under Sections 3 and 4 hereof. The Company
and the Guarantors further agree to waive
the defense in any action for specific
performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. Neither the
Company nor any Guarantor will, on or after
the date of this Agreement, enter into any
agreement with respect to its securities
that is inconsistent with the rights
granted to the Holders in this Agreement or
otherwise conflicts with the provisions
hereof. Neither the Company nor any
Guarantor has previously entered into any
agreement granting any registration rights
with respect to its securities to any
Person. The rights granted to the Holders
hereunder do not in any way conflict with
and are not inconsistent with the rights
granted to the holders of the Company's and
the Guarantors' securities under any
agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified
or supplemented, and waivers or consents to
or departures from the provisions hereof
may not be given unless (i) in the case of
Section 5 hereof and this Section 10(c)(i),
the Company has obtained the written
consent of Holders of all outstanding
Transfer Restricted Securities and (ii) in
the case of all other provisions hereof,
the Company has obtained the written
consent of Holders of a majority of the
outstanding principal amount of Transfer
Restricted Securities (excluding Transfer
Restricted Securities held by the Company
of its Affiliates). Notwithstanding the
foregoing, a waiver or consent to departure
from the provisions hereof that relates
exclusively to the rights of Holders whose
securities are being tendered pursuant to
the Exchange Offer and that does not affect
directly or indirectly the
25
rights of other Holders whose securities
are not being tendered pursuant to such
Exchange Offer may be given by the Holders
of a majority of the outstanding principal
amount of Transfer Restricted Securities
subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall
be third party beneficiaries to the
agreements made hereunder between the
Company and the Guarantors, on the one
hand, and the Initial Purchasers, on the
other hand, and shall have the right to
enforce such agreements directly to the
extent they may deem such enforcement
necessary or advisable to protect its
rights or the rights of Holders hereunder.
(e) Notices. All notices and other
communications provided for or permitted
hereunder shall be made in writing by
hand-delivery, first-class mail (registered
or certified, return receipt requested),
telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set
forth on the records of the
Registrar under the Indenture,
with a copy to the Registrar under
the Indenture; and
(ii) if to the Company or the
Guarantors:
SFX Entertainment, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
With a copy to:
Xxxxx & XxXxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
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
receipt acknowledged, if telecopied; and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
26
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.
(f) Upon the date of filing of the Exchange
Offer or a Shelf Registration Statement, as
the case may be, notice shall be delivered
to Xxxxxx Xxxxxxx & Co. Incorporated, on
behalf of the Initial Purchasers (in the
form attached hereto as Exhibit A) and
shall be addressed to: Attention: Corporate
Finance Department, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
(g) Successors and Assigns. This Agreement
shall inure to the benefit of and be
binding upon the successors and assigns of
each of the parties, including without
limitation and without the need for an
express assignment, subsequent Holders of
Transfer Restricted Securities; provided,
that nothing herein shall be deemed to
permit any assignment, transfer or other
disposition of Transfer Restricted
Securities in violation of the terms hereof
or of the Purchase Agreement or the
Indenture. If any transferee of any Holder
shall acquire Transfer Restricted
Securities in any manner, whether by
operation of law or otherwise, such
Transfer Restricted Securities shall be
held subject to all of the terms of this
Agreement, and by taking and holding such
Transfer Restricted 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,
including the restrictions on resale set
forth in this Agreement and, if applicable,
the Purchase Agreement, and such Person
shall be entitled to receive the benefits
hereof.
(h) 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.
(i) Headings. The headings in this Agreement
are for convenience of reference only and
shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES
THEREOF.
27
(k) Severability. In the event that any one or
more of the provisions contained herein, or
the application thereof in any
circumstance, is held invalid, illegal or
unenforceable, the validity, legality and
enforceability of any such provision in
every other respect and of the remaining
provisions contained herein shall not be
affected or impaired thereby.
(l) Entire Agreement. This Agreement is
intended by the parties as a final
expression of their agreement and intended
to be a complete and exclusive statement of
the agreement and understanding of the
parties hereto in respect of the subject
matter contained herein. There are no
restrictions, promises, warranties or
undertakings, other than those set forth or
referred to herein with respect to the
registration rights granted with respect to
the Transfer Restricted Securities. This
Agreement supersedes all prior agreements
and understandings between the parties with
respect to such subject matter.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SFX ENTERTAINMENT, INC.
BGP ACQUISITION, L.L.C.
By: SFX ENTERTAINMENT, INC.,
as managing member
SFX NETWORK GROUP, L.L.C.
By: SFX ENTERTAINMENT, INC.,
as managing member
WESTBURY MUSIC FAIR, L.L.C.
By: SFX ENTERTAINMENT, INC.,
as managing member
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Counsel, Executive Vice
President And Secretary
AKG, INC.
AMERICAN ARTISTS, INC.
AMERICAN ARTISTS LIMITED, INC.
AMPHITHEATER ENTERTAINMENT PARTNERSHIP
By: SM/PACE, INC.,
as general partner
ANT THEATRICAL PRODUCTIONS, INC.
ARDEE FESTIVALS N.J. INC.
Registration Rights Agreement signature page.
ARDEE PRODUCTIONS, LTD.
ATLANTA CONCERTS, INC.
XXXXXX & XXXX, INC.
AVALON ACQUISITION CORP.
BEACH CONCERTS, INC.
BG PRESENTS, INC.
XXXX XXXXXX ENTERPRISES, INC.
XXXX XXXXXX MANAGEMENT, INC.
XXXX XXXXXX PRESENTS, INC.
BOSTON PLAYHOUSE REALTY, INC.
BOYLSTON STREET THEATRE CORP.
BROADWAY CONCERTS, INC.
BROADWAY SERIES ASSOCIATES, INC.
BROADWAY SERIES MANAGEMENT GROUP, INC.
CAMARILLO AMPHITHEATER MANAGING
PARTNERS, INC.
Registration Rights Agreement signature page.
CHEVA TOURING COMPANY
By: MAGICWORKS ENTERTAINMENT
INCORPORATED,
as a majority holder
CONCERTS, INC.
CONNECTICUT AMPHITHEATER DEVELOPMENT
CORPORATION
CONNECTICUT CONCERTS INCORPORATED
CONNECTICUT PERFORMING ARTS, INC.
CONN TICKETING COMPANY
By: NORTHEAST TICKETING COMPANY and
SOUTHEAST TICKETING COMPANY,
as general partners
CONTEMPORARY GROUP ACQUISITION CORP.
CONTEMPORARY GROUP, INC.
CONTEMPORARY MARKETING, INC.
CONTEMPORARY PRODUCTIONS INCORPORATED
CONTEMPORARY SPORTS INCORPORATED
XXXXXX AND XXXXXX MANAGEMENT CO.
DEER CREEK AMPHITHEATER CONCERTS, INC.
Registration Rights Agreement signature page.
DEER CREEK AMPHITHEATER CONCERTS, L.P.
By: DEER CREEK AMPHITHEATER
CONCERTS, INC.,
as general partner
DELSENER/XXXXXX ENTERPRISES, LTD.
XXXXXXXX-XXXXXX, INC.
XXXXXXXX-XXXXXX PROMOTIONS, INC.
DLC CORP.
DUMB DEAL, INC.
EAGLE EYE ENTERTAINMENT INC.
EAGLE EYE ENTERTAINMENT USA INC.
EMI ACQUISITION SUB, INC.
ENTERTAINMENT PERFORMING ARTS, INC.
EVENT MERCHANDISING INC.
EXIT 116 REVISITED, INC.
XXXX ASSOCIATES MANAGEMENT ENTERPRISES,
INC.
FESTIVAL PRODUCTIONS, INC.
Registration Rights Agreement signature page.
FILLMORE CORPORATION
Registration Rights Agreement signature page.
FILLMORE FINGERS, INC.
GERSHWINS' FASCINATING RHYTHM
By: MAGICWORKS ENTERTAINMENT
INCORPORATED,
as a majority holder
GSAC PARTNERS
By: SM/PACE INC.,
as the parent corporation of the general
partner
HIGH COTTON, INC.
IN HOUSE TICKETS, INC.
XXXXXX XXXXXXX AMPHITHEATER
By: AVALON ACQUISITION CORP.,
as general partner
JEFKO TOURING COMPANY
By: MAGICWORKS ENTERTAINMENT
INCORPORATED,
as a majority holder
MAGICWORKS CONCERTS, INC.
MAGICWORKS ENTERTAINMENT INCORPORATED
MAGICWORKS ENTERTAINMENT
INTERNATIONAL, INC.
MAGICWORKS EXHIBITIONS, INC.
MAGICWORKS EXHIBITIONS JOINT VENTURE
Registration Rights Agreement signature page.
By: MAGICWORKS ENTERTAINMENT
INCORPORATED,
as a majority holder
MAGICWORKS FASHION MANAGEMENT, INC.
MAGICWORKS MERCHANDISING, INC.
MAGICWORKS SPORTS MANAGEMENT, INC.
MAGICWORKS THEATRICALS, INC.
MAGICWORKS TRANSPORTATION, INC.
MAGICWORKS WEST, INC.
MELODY TENT AND AMPHITHEATER, INC.
MURAT CENTER CONCERTS, INC.
MURAT CENTER CONCERTS, L.P.
By: MURAT CENTER CONCERTS, INC.,
as general partner
NEW AVALON, INC.
NOC, INC.
NORTHEAST TICKETING COMPANY
OAKDALE THEATER CONCERTS, INC.
OLD PCI, INC.
Registration Rights Agreement signature page.
PACE AEP ACQUISITION, INC.
PACE AMPHITHEATER MANAGEMENT, INC.
PACE AMPHITHEATERS, INC.
PACE BAYOU PLACE, INC.
PACE COMMUNICATIONS, INC.
PACE CONCERTS, LTD.
By: PACE CONCERTS GP, INC.,
as general partner
PACE CONCERTS GP, INC.
PACE ENTERTAINMENT CORPORATION
PACE ENTERTAINMENT GROUP, LTD.
By: PACE ENTERTAINMENT GP CORP.,
as general partner
PACE ENTERTAINMENT GP CORP.
XXXX XXXXXX KEYNES, INC.
PACE MOTOR SPORTS, INC.
PACE MUSIC GROUP, INC.
PACE PRODUCTIONS, INC.
PACE THEATRICAL GROUP, INC.
Registration Rights Agreement signature page.
PACE TOURING, INC.
PACE U.K. HOLDING CORPORATION
PAVILION PARTNERS
By: SM/PACE, INC.,
as managing partner
PEC, INC.
PERFORMING ARTS MANAGEMENT OF NORTH
MIAMI, INC.
POLARIS AMPHITHEATER CONCERTS, INC.
PTG-FLORIDA, INC.
QN CORP.
RUGRATS AMERICAN TOUR, LTD.
By: PACE VARIETY ENTERTAINMENT, INC.,
as general partner
SFX ACQUISITION CORP.
SFX BROADCASTING OF THE MIDWEST, INC.
SFX CONCERTS, INC.
SFX DELAWARE, INC.
SFX RADIO NETWORK, INC.
SFX SPORTS GROUP, INC.
Registration Rights Agreement signature page.
SFX TOURING, INC.
XXXXXX XXXXXXX, INC.
SHORELINE AMPHITHEATRE, LTD.
SHORELINE AMPHITHEATRE PARTNERS
By: SHORELINE AMPHITHEATRE, LTD.,
as general partner
SM/PACE, INC.
SOUTHEAST TICKETING COMPANY
SOUTHERN PROMOTIONS, INC.
STEP ENTERTAINMENT SERVICES INC.
SUNSHINE CONCERTS, L.L.C.
By: SFX BROADCASTING OF THE MIDWEST,
INC.,
as the sole member
SUNSHINE DESIGNS, INC.
SUNSHINE DESIGNS, L.P.
By: SUNSHINE DESIGNS, INC.,
as general partner
SUNTEX ACQUISITION, INC.
SUNTEX ACQUISITION, L.P.
By: SUNTEX ACQUISITION, INC.,
as general partner
Registration Rights Agreement signature page.
TAP PRODUCTIONS, INC.
TBA MEDIA, INC.
THE ALBUM NETWORK, INC.
THE GIN GAME TOURING COMPANY
By: MAGICWORKS ENTERTAINMENT
INCORPORATED,
as a majority holder
INTERNATIONAL MUSIC (CANADA) INC.
THE WEDDING TOUR COMPANY
TICKET SERVICE, INC.
CONCERT PRODUCTIONS (UK) LIMITED
INTERNATIONAL MUSIC (USA) INC.
INTERNATIONAL MUSIC LTD.
INTERNATIONAL MUSIC TOUR I LTD.
INTERNATIONAL MUSIC TOUR II LTD.
INTERNATIONAL MUSIC TOUR I (USA) INC.
INTERNATIONAL MUSIC TOUR II (USA) INC.
TOURING ARTISTS GROUP, INC. (FL)
Registration Rights Agreement signature page.
TOURING PRODUCTIONS, INC.
TREMONT STREET THEATRE CORPORATION II,
INC.
TUNEFUL COMPANY, INC.
WARRENTON STREET THEATRE CORP.
WEST COAST AMPHITHEATER CORP.
WESTERN AMPHITHEATER PARTNERS
By: PAVILION PARTNERS,
as general partner and SM/PACE, INC., as
general partner of PAVILION PARTNERS
WOLFGANG RECORDS
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
AMERICAN BROADWAY, INC.
CONCERT PRODUCTIONS INTERNATIONAL B.V.
CONNECTICUT PERFORMING ARTS PARTNERS
By: CONNECTICUT AMPHITHEATER
DEVELOPMENT CORPORATION and
NOC, INC.,
as general partners
Registration Rights Agreement signature page.
FINANCIAL ADVISORY MANAGEMENT
ENTERPRISES, INC.
IRVING PLAZA CONCERTS, INC.
MAGICWORKS ENTERTAINMENT ASIA LIMITED
MARCO ENTERTAINMENT, INC.
PACE U.K.
PACE VARIETY ENTERTAINMENT, INC.
TOURING ARTISTS GROUP, INC. (OH)
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Agent
Registration Rights Agreement signature page.
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ J. Knee
-------------------------------------
Name: J. Knee
Title: Principal
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Berhenfeld
-------------------------------------
Name: Xxxxxx Berhenfeld
Title: Managing Director
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
By: /s/ Xxxxx X. Van Trees
-------------------------------------
Name: Xxxxx X. Van Trees
Title: Managing Director
BNY CAPITAL MARKETS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Registration Rights Agreement signature page.
