Exhibit 4.3
$200,000,000
SHG ACQUISITION CORP.
11% SENIOR SUBORDINATED NOTES DUE 2014
TO BE ASSUMED BY
SKILLED HEALTHCARE GROUP, INC.
REGISTRATION RIGHTS AGREEMENT
December 27, 2005
CREDIT SUISSE FIRST BOSTON LLC
J.P. MORGAN SECURITIES INC.
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
SHG Acquisition Corp., a Delaware corporation (the "MERGER SUB"),
proposes to issue and sell to Credit Suisse First Boston LLC and J.P.
Morgan Securities Inc. (collectively, the "INITIAL PURCHASERS"), upon the
terms set forth in a purchase agreement dated December 14, 2005 (the
"PURCHASE AGREEMENT"), $200,000,000 aggregate principal amount of its 11%
Senior Subordinated Notes (the "INITIAL NOTES") to be unconditionally
guaranteed (the "GUARANTIES") immediately following the Merger (as defined
in the Purchase Agreement) by each of the domestic subsidiary guarantors
listed in Schedule I hereto, (the "GUARANTORS" and together with the
Issuer (as defined below), the "COMPANY"). As used in this Agreement, the
term "ISSUER" means, prior to the Merger, Merger Sub and, thereafter,
Skilled Healthcare Group Inc., a Delaware corporation, the surviving
entity after the Merger. The Initial Notes will be issued pursuant to an
Indenture, dated as of December 27, 2005, (the "INDENTURE") among Merger
Sub, Skilled Healthcare Group, Inc., the Guarantors named therein and
Wells Fargo Bank, National Association, as trustee (the "TRUSTEE"). As an
inducement to the Initial Purchasers, the Company agrees with the Initial
Purchasers, for the benefit of the holders of the Initial Notes
(including, without limitation, the Initial Purchasers), the Exchange
Notes (as defined below) and the Private Exchange Notes (as defined below)
(collectively the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law
(after the Company has complied with the ultimate paragraph of this Section 1),
the Company shall, at its own cost, prepare and, not later than 240 days after
(or if the 240th day is not a business day, the first business day thereafter)
(such 240th day, or the first business day thereafter, being an "Exchange Offer
Filing Deadline") after the date of original issue of the Initial Notes (the
"ISSUE DATE"), file with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") on an appropriate form under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED
EXCHANGE OFFER") to the Holders of Transfer Restricted Notes (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Notes, a like aggregate principal
amount of debt securities (the "EXCHANGE NOTES") of the Company issued under the
Indenture and identical in all material respects to the Initial Notes (except
for the transfer restrictions relating to the Initial Notes and the provisions
relating to the matters described in Section 6 hereof) that would be registered
under the Securities Act. The Company shall use its reasonable best efforts to
(i) cause such Exchange Offer Registration Statement to become effective under
the Securities Act within 300 days (or if the 300th day is not a business day,
the first business day thereafter) after the Issue Date of the Initial Notes
(such 300th day, or the first business day thereafter, being an "EXCHANGE OFFER
EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement
effective for not less than
30 days (or longer, if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period being called the
"EXCHANGE OFFER REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the Company
will be entitled to consummate the Registered Exchange Offer 30 days after such
commencement provided that the Company has accepted all the Initial Notes
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Notes (as defined in Section 6 hereof)
electing to exchange the Initial Notes for Exchange Notes (assuming that such
Holder is not an affiliate of the Company within the meaning of the Securities
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 and is not prohibited by any law or policy of
the Commission from participating in the Registered Exchange Offer) to trade
such Exchange Notes from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations
by the Commission's staff of Section 5 of the Securities Act, in the absence of
an applicable exemption therefrom, (i) each Holder which is a broker or dealer
registered under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") (a "BROKER-DEALER") electing to exchange Initial Notes, 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 (a) Annex A hereto on the cover of such
prospectus, (b) Annex B hereto in the "Exchange Offer Procedures" section of
such prospectus and the "Purpose of the Exchange Offer" section of such
prospectus, and (c) 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) an Initial
Purchaser that elects to sell Exchange Notes acquired in exchange for Initial
Notes constituting any portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale. All
references in this Agreement to "PROSPECTUS" shall, except when the context
requires, include any prospectus (or amendment or supplement thereto) filed with
the Commission pursuant to Section 3 of this Agreement.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes; provided, however, that (i)
in the case where such prospectus and any amendment or supplement thereto must
be delivered by an Exchanging Dealer or an Initial Purchaser, such period shall
be the lesser of 180 days and the date on which all Exchanging Dealers and the
Initial Purchasers have sold all Exchange Notes held by them (unless such period
is extended pursuant to Section 3(j) below) and (ii) the Company shall make such
prospectus and any amendment or supplement thereto, available to any
broker-dealer for use in connection with any resale of any Exchange Notes for a
period of not less than 90 days after the consummation of the Registered
Exchange Offer. If, upon consummation of the Registered Exchange Offer, any
Initial Purchaser holds Initial Notes acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Notes pursuant to the Registered Exchange Offer, shall issue and deliver to such
Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Notes held by such Initial
Purchaser, a like principal amount of debt securities of the Company issued
under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 (hereof) to the
Initial Notes (the "PRIVATE EXCHANGE NOTES"). The Initial Notes, the Exchange
Notes and the Private Exchange Notes are herein collectively called the "NOTES".
In connection with the Registered Exchange Offer, the Company shall:
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(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with, if required by the
Trustee for the Notes or the depository for the Notes, an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws relating to the
Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Notes validly tendered and
not withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial Notes so
accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Initial Notes of such
Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Initial Notes surrendered in exchange therefor or, if no interest has been
paid on the Initial Notes, from the Issue Date.
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 Exchange Notes within the meaning of the Securities Act, (iii) such
Holder is not an "affiliate" of the Company as defined in Rule 405 of the
Securities Act, or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the Exchange
Notes and (v) if such Holder is a broker-dealer, that it will receive Exchange
Notes for its own account in exchange for Initial Notes that were acquired as a
result of market-making activities or other trading activities and that it will
be required to deliver a prospectus in connection with any resale of such
Exchange Notes.
Notwithstanding any other provisions hereof, but subject to Section
3(b) with respect to suspension, the Company will ensure that (i) any Exchange
Offer Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all material
respects with the Securities Act and the rules and regulations thereunder, (ii)
any Exchange Offer Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2. Shelf Registration. If, (i) applicable interpretations of the
staff of the Commission do not permit the Company to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the Registered
Exchange Offer is not consummated within 330 days of the Issue Date, (iii)
any Initial Purchaser shall notify the Company following consummation of
the Registered Exchange Offer that the Initial Notes (or the Private
Exchange Notes) held by it are not eligible to be exchanged for Exchange
Notes in the Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer) is prohibited by law or Commission policy from
participating in the Registered Exchange Offer or, in the case of any
Holder (other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder may not pursuant to the Securities
Act resell the Exchange Notes acquired by it in the Registered Exchange
Offer to the public without delivering a prospectus and such Holder so
requests, the Company shall take the following actions:
(a) The Company shall, at its cost, as promptly as practicable file
with the Commission and thereafter shall use its reasonable best efforts
to cause to be declared effective a registration statement (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, a "REGISTRATION STATEMENT"), (x) in the case of clause (i)
above, on or prior to the 300th day after the Issue Date (or if the 300th
day is not a business day, the first business day thereafter) and (y) in
the case of clause (ii), (iii) or (iv) above, on or prior to the 60th day
(or if the 60th day is not a business day, the first business day
thereafter) after the date on which the Shelf Registration Statement is
required to be filed (such 300th or 60th day, or the first business day
thereafter, as the case may be, the "SHELF EFFECTIVENESS DEADLINE"), on an
appropriate form under the Securities Act relating to the offer and sale
of the Transfer Restricted Notes (as defined in Section 6 hereof) by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and Rule 415
under the Securities Act (hereinafter, the "SHELF REGISTRATION");
provided, however, that no Holder (other than an Initial Purchaser) shall
be entitled to have the Notes held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Notes, for a period of two years (or for such longer period if
extended pursuant to Section 3(j) below) from the Issue Date or such
shorter period that will terminate when all the Notes covered by the Shelf
Registration Statement (i) have been disposed of in accordance therewith
or (ii) can be sold pursuant to Rule 144 under the Securities Act without
any limitations under clauses (c),(e),(f) and (h) thereof. The Company
shall be deemed not to have used its reasonable best efforts to keep the
Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Notes covered
thereby not being able to offer and sell such Notes during that period,
unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of each
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent
applicable, any Registered Exchange Offer contemplated by Section 1
hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company shall use its best efforts to reflect
in each such document, when so filed with the Commission, such comments as
such Initial Purchaser reasonably may propose; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section and in Annex C hereto in the "Plan of Distribution" section
of the prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto in the
Letter of Transmittal (or, if a Letter of Transmittal is not required by
the Trustee for the Notes or the depository for the Notes, such other
required documentation or communication) delivered pursuant to the
Registered Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in the prospectus forming a part
of the Exchange Offer Registration Statement; (iv) include within the
prospectus contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker-dealer that is
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Notes to be received by such broker-dealer in the Registered
Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions
or policies have been publicly disseminated by the staff of the Commission
or such positions or policies, in the reasonable judgment of the Initial
Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in
the case of a Shelf Registration Statement, include in the prospectus
included in the Shelf Registration Statement (or, if permitted, in a
prospectus supplement that becomes a part thereof pursuant to Rule 430B(f)
under the Securities Act) that is delivered to any Holder pursuant to
Section 3(d) and (f) the names of the Holders, who propose to sell Notes
pursuant to the Shelf Registration Statement, as selling noteholders and
who have furnished to the Company the information required by Section 3(n)
hereof.
(b) The Company shall give written notice to the Initial Purchasers,
the Holders of the Notes and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the issuance by
the Commission of a notification of objection to the use of the form
on which the Registration Statement has been filed, and of the
happening of any event that causes the Company to become an
"ineligible issuer," as defined in Rule 405 under the Securities
Act;
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(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Registration Statement or the prospectus in
order that the Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading.
(c) The Company shall use its reasonable best efforts to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Notes included within the
coverage of the Shelf Registration, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer who so requests
and each Initial Purchaser, and to any other Holder who so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if any Initial Purchaser or any such Holder requests, all exhibits thereto
(including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Notes included within the coverage of the Shelf Registration,
without charge, as many copies of the prospectus (including each preliminary
prospectus) included in the Shelf Registration Statement and any amendment or
supplement thereto as such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the Notes in
connection with the offering and sale of the Notes covered by the prospectus, or
any amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Company shall deliver to each Initial Purchaser, any Exchanging
Dealer, any Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by any Initial
Purchaser, if necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Notes covered by the
prospectus, or any amendment or supplement thereto, included in such Exchange
Offer Registration Statement.
(h) Prior to any public offering of the Notes, pursuant to any
Registration Statement, the Company shall register or qualify or cooperate with
the Holders of the Notes included therein and their respective counsel in
connection with the registration or qualification of the Notes for offer and
sale under the securities or "blue sky" laws of such states of the United States
as any Holder of the Notes reasonably requests in writing and do any and all
other acts or things as may be reasonably requested to enable the offer and sale
in such jurisdictions of the Notes covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business or as a dealer in securities in any jurisdiction where
it is not then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it is not
then so subject.
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(i) The Company shall cooperate with the Holders of the Notes to
facilitate the timely preparation and delivery of certificates representing the
Notes to be sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the Holders
may request a reasonable period of time prior to sales of the Notes pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company is
required to maintain an effective Registration Statement, the Company shall
promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Notes or purchasers
of Notes, the prospectus will not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. If the Company notifies the Initial Purchasers, the
Holders of the Notes and any known Participating Broker-Dealer in accordance
with paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchasers, the Holders of the Notes and any such Participating
Broker-Dealers shall suspend use of such prospectus, and the period of
effectiveness of the Shelf Registration Statement provided for in Section 2(b)
above and the Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number of days from and including the date
of the giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Notes and any known Participating Broker-Dealer
shall have received such amended or supplemented prospectus pursuant to this
Section 3(j). During the period during which the Company is required to maintain
an effective Shelf Registration Statement pursuant to this Agreement, the
Company will prior to the three-year expiration of such Shelf Registration
Statement file, and use its reasonable best efforts to cause to be declared
effective (unless it becomes effective automatically upon filing) within a
period that avoids any interruption in the ability of Holders of Notes covered
by the expiring Shelf Registration Statement to make registered dispositions a
new registration statement relating to the Notes, which shall be deemed the
"Shelf Registration Statement" for purposes of this Agreement.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Initial Notes, the
Exchange Notes or the Private Exchange Notes, as the case may be, and provide
the applicable trustee with printed certificates for the Initial Notes, the
Exchange Notes or the Private 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 rules and regulations of the
Commission to the extent and so long as they are applicable to the Registered
Exchange Offer or the Shelf Registration and will make generally available to
its security holders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the Registration Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, (the "TRUST INDENTURE ACT") in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of the Notes to be sold pursuant
to the Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of the Notes as the Company may from
time to time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the Notes of any
Holder that unreasonably fails to furnish such information within a reasonable
time after receiving such request.
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(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 of the Notes shall reasonably request in order to
facilitate the disposition of the Notes pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall (i) make
reasonably available for inspection by the Holders of the Notes, any underwriter
participating in any disposition pursuant to the Shelf Registration Statement
and any attorney, accountant or other agent retained by the Holders of the Notes
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, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Notes or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4
hereof; and provided further, however, that any information that is designated
in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by each such person,
unless (A) the disclosure of such information is necessary to avoid or correct a
material misstatement or material omission in such Registration Statement or
prospectus, (B) such disclosure is made in connection with a court proceeding,
to any governmental or regulatory authority having jurisdiction over each such
person or their respective affiliates, or is reasonably necessary in order to
establish a "due diligence" defense pursuant to Section 11 of the Securities Act
or (C) such information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality.
(q) In the case of any Shelf Registration, the Company, if requested by
any Holder of Notes covered thereby, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Notes addressed to such Holders and
the Managing Underwriters (as defined below), if any, thereof and dated, in the
case of the initial opinion, the effective date of such Shelf Registration
Statement substantially in the form of the opinion delivered by such counsel on
the Closing Date pursuant to Section 6(c) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a Shelf
Registration Statement; provided, however, that such opinion shall state that
(A) as of the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto or the
most recent prospectus supplement thereto that is deemed to establish a new
effective date with respect thereto, as the case may be, such Shelf Registration
Statement and the prospectus and any prospectus supplement included therein, as
then amended or supplemented, and any documents incorporated by reference
therein, do not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such incorporated
documents, in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act) and (B) as of
an applicable time on the date of pricing identified by such Holders or the
Managing Underwriters, if any, that the prospectus (as supplemented by the most
recent prospectus supplement thereto), taken together with (1) the most recent
prospectus or prospectus supplement, (2) any Issuer FWPs issued in compliance
with Section 3(w) and (3) the pricing information with respect to the applicable
Notes, do not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances in which they are made not misleading,
(ii) its officers to execute and deliver all customary documents and
certificates and updates thereof reasonably requested by any underwriters of the
applicable Notes and (iii) its independent public accountants and the
independent public accountants with respect to any other entity for which
financial information is provided in the Shelf Registration Statement to provide
to the selling Holders of the applicable Notes and any underwriter therefor a
comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
8
(r) In the case of the Registered Exchange Offer, if requested by any
Initial Purchaser or any known Participating Broker-Dealer, the Company shall
cause (i) its counsel to deliver to such Initial Purchaser or such Participating
Broker-Dealer a signed opinion substantially in the form set forth in Section
6(c) of the Purchase Agreement with such changes as are customary in connection
with the preparation of a Registration Statement and (ii) its independent public
accountants and the independent public accountants with respect to any other
entity for which financial information is provided in the Registration Statement
to deliver to such Initial Purchaser or such Participating Broker-Dealer a
comfort letter, in customary form, meeting the requirements as to the substance
thereof as set forth in Section 6(a) of the Purchase Agreement, with appropriate
date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Notes by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be, the Company shall mark, or
caused to be marked, on the Initial Notes so exchanged that such Initial Notes
are being canceled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be; in no event shall the Initial Notes be marked as paid
or otherwise satisfied.
(t) The Company will use its reasonable best efforts to (a) if the Initial
Notes have been rated prior to the initial sale of such Initial Notes, confirm
such ratings will apply to the Notes covered by a Registration Statement, or (b)
if the Initial Notes were not previously rated, cause the Notes covered by a
Registration Statement to be rated with the appropriate rating agencies, if so
requested by Holders of a majority in aggregate principal amount of Notes
covered by such Registration Statement, or by the Managing Underwriters (as
defined below), if any.
(u) In the event that any broker-dealer registered under the Exchange Act
shall underwrite any Notes or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules (the "RULES") of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Notes or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Notes, to exercise
usual standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an underwritten offering
or is made through a placement or sales agent, to recommend the yield of such
Notes, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof and
(iii) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration of the Notes covered by a
Registration Statement contemplated hereby.
(w) The Company shall not, without the prior written consent of the
Initial Purchasers, and each Holder that may be deemed to be an "underwriter" in
connection with any resale of Notes pursuant to a Shelf Registration shall not
without the prior written consent of the Company, make any offer relating to the
Notes that would constitute a "free writing prospectus" as defined Rule 405
under the Securities Act.
9
4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1
through 3 hereof (including the reasonable fees and expenses, if any, of
Cravath, Swaine & Moore LLP, counsel for the Initial Purchasers, incurred in
connection with the Registered Exchange Offer), whether or not the Registered
Exchange Offer or a Shelf Registration is filed or becomes effective, and, in
the event of a Shelf Registration, shall bear or reimburse the Holders of the
Notes covered thereby for the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of the
Initial Notes covered thereby to act as counsel for the Holders of the Initial
Notes in connection therewith.
5. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Holder of the Notes, any Participating Broker-Dealer and each person, if
any, who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Notes) to which each Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus or "issuer free
writing prospectus" as defined in Rule 433 under the Securities Act (an "Issuer
FWP"), relating to a Shelf Registration, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement made in or omission or
alleged omission from a Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus or Issuer FWP relating to
a Shelf Registration in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein and (ii) with respect to any untrue
statement or alleged untrue statement made in or omission or alleged omission
from any preliminary prospectus relating to a Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder or Participating Broker-Dealer from whom the person
asserting any such losses, claims, damages or liabilities purchased the Notes
concerned, to the extent that a prospectus relating to such Notes was required
to be delivered (including through satisfaction of the conditions in Rule 172
under the Securities Act) by such Holder or Participating Broker-Dealer under
the Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder or Participating Broker-Dealer results from
the fact that there was not conveyed to such person, at or prior to the time of
sale of such Notes to such person, an amended or supplemented prospectus or, if
the Shelf Registration Statement is on Form S-3, an Issuer FWP (to the extent
concurrently filed on Form 8-K), in any such case correcting such untrue
statement or omission or alleged untrue statement or omission, if the Company
had previously provided notice to such Holder or Participating Broker-Dealer
pursuant to Section 3(b)(v) and had furnished copies thereof to such Holder or
Participating Broker-Dealer; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also indemnify underwriters,
their officers and directors and each person who controls such underwriters
within the meaning of the Securities Act or the Exchange Act to the same extent
as provided above with respect to the indemnification of the Holders of the
Notes if requested by such Holders.
(b) Each Holder of the Notes, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities
or any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus or Issuer FWP relating to a Shelf Registration,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement
or omission or alleged untrue statement or omission was made in reliance
upon and in conformity with written information pertaining to such Holder
10
and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company
or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling
persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 5, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not
relieve the indemnifying party from any liability that it may have under
subsection (a) or (b) above except to the extent that it has been
materially prejudiced by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof the indemnifying party will not be liable to such indemnified
party under this Section 5 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the contrary; (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party; (iii) the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it that are different from or in addition to those available
to the indemnifying party, or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood and agreed that the indemnifying
party shall not, in connection with any proceeding or related proceeding
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for any Initial Purchaser, its
affiliates, directors and officers and any control persons of such Initial
Purchaser shall be designated in writing by CSFB and any such separate
firm for the Company, the Guarantors and any control persons of the
Company and the Guarantors shall be designated in writing by the Company.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action, and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified
party on the other from the exchange of the Notes, pursuant to the
Registered Exchange Offer or the sale of the Notes pursuant to the Shelf
Registration, or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as
any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a
11
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders of
the Notes shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of
the Notes pursuant to a Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if
any, who controls such indemnified party within the meaning of the
Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the
sale of the Notes pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any
indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "ADDITIONAL INTEREST") with respect to the Initial Notes shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (v) below a "REGISTRATION DEFAULT"):
(i) the Exchange Offer Registration Statement required by this
Agreement is not filed with the Commission on or prior to the
Exchange Offer Filing Deadline;
(ii) if obligated to file a Shelf Registration Statement
pursuant to Section 2(ii)-(iv) above, such Shelf Registration
Statement is not filed prior to the 30th day (or if the 30th day is
not a business day, the first business day thereafter) after the
date on which such obligation to file a Shelf Registration Statement
arises;
(iii) any Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to the Exchange
Offer Effectiveness Deadline or the Shelf Effectiveness Deadline, as
applicable;
(iv) the Registered Exchange Offer has not been consummated on
or prior to the 330th day (or if the 330th day is not a business
day, the first business day thereafter) after the Issue Date; or
(v) If after either the Exchange Offer Registration Statement
or the Shelf Registration Statement is declared effective (or
becomes automatically effective upon filing) (A) such Registration
Statement thereafter ceases to be effective; or (B) such
Registration Statement or the related prospectus ceases to be usable
(except as permitted in paragraph (b)) in connection with resales of
Transfer Restricted Notes during the periods specified herein
because either (1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, (2)
it shall be necessary to amend such Registration Statement or
supplement the related prospectus, to comply with the Securities Act
or the Exchange Act or the respective rules thereunder or (3) such
Registration Statement is a Shelf Registration Statement that has
expired before a replacement Shelf Registration Statement has become
effective.
Additional Interest shall accrue on the Initial Notes at a rate of $0.05
per week per $1,000 principal amount of Notes for the first 90-day period
immediately following the occurrence of a Registration Default,
12
increasing by an additional $0.05 per week per $1,000 principal amount of
Notes with respect to each subsequent 90-day period until all Registration
Defaults have been cured up to a maximum additional interest rate of $0.30
per week per $1,000 principal amount of Notes.
(b) A Registration Default referred to in Section 6(a)(v)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of
a post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus
or (y) other material events, with respect to the Company that would need
to be described in such Shelf Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement such Shelf Registration
Statement and related prospectus to describe such events; provided,
however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be
payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i),
(ii), (iii), (iv) or (v) of Section 6(a) above will be payable in cash on
the regular interest payment dates with respect to the Initial Notes. The
amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the Initial
Notes, multiplied by a fraction, the numerator of which is the number of
days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED NOTES" means each Initial Note until (i)
the date on which such Initial Note has been exchanged by a person other
than a broker-dealer for an Exchange Note in the Registered Exchange
Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of an Initial Note for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii)
the date on which such Initial Note has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Initial Note is
distributed to the public pursuant to Rule 144 under the Securities Act or
is saleable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its reasonable best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Initial Notes,
make publicly available other information so long as necessary to permit sales
of their securities pursuant to Rules 144 and 144A. The Company covenants that
it will take such further action as any Holder of Initial Notes may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Initial Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Initial Notes identified to the Company
by the Initial Purchasers upon request. Upon the request of any Holder of
Initial Notes, the Company shall deliver to such Holder a written statement as
to whether it has complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering (the "MANAGING UNDERWRITERS") will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Notes to be included in such offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Notes on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
13
9. 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, except by the Company and the written
consent of the Holders of a majority in principal amount of the Notes affected
by such amendment, modification, supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Notes, at the most current address
given by such Holder to the Company;
(2) if to the Initial Purchasers:
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-4296
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Fax No.: (212) 474-3700
Attention: Kris Heinzelman
(3) if to the Company, at its address as follows:
Skilled Healthcare Group, Inc.
27442 Portola Parkway, Suite 200
Foothill Ranch, CA 92618
Attention: General Counsel
with a copy to:
Latham & Watkins LLP
650 Town Center Drive, Suite 200
Costa Mesa, CA 92626
Attention: Jonn R. Beeson
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
14
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) Notes Held by the Company. Whenever the consent or approval of Holders
of a specified percentage of principal amount of Notes is required hereunder,
Notes held by the Company or its affiliates (other than subsequent Holders of
Notes if such subsequent Holders are deemed to be affiliates solely by reason of
their holdings of such Notes) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
15
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Issuer and the Guarantors in
accordance with its terms.
Very truly yours,
SHG ACQUISITION CORP.
By:____________________________
Name: Robert M. Le Blanc
Title: President and Secretary
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE I HERETO
By:____________________________
Name: Roland G. Rapp
Title: General Counsel, Secretary and
Chief Administrative Officer
The undersigned hereby acknowledges and agrees that, upon the effectiveness of
the Merger (as defined in the Purchase Agreement) it will succeed by operation
of law to all of the rights and obligations of the Company set forth herein and
that all references herein to the "Company" shall thereupon be deemed to be
references to the undersigned.
by: SKILLED HEALTHCARE GROUP, INC.
By:_____________________________
Name: Roland G. Rapp
Title: General Counsel, Secretary and
Chief Administrative Officer
16
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
J.P. MORGAN SECURITIES INC.
by: CREDIT SUISSE FIRST BOSTON LLC
By:_____________________________
Name:
Title:
17
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
J.P. MORGAN SECURITIES INC.
by: J.P. MORGAN SECURITIES INC.
By:_____________________________
Name:
Title:
18
SCHEDULE I
List of Subsidiary Guarantors
Delaware Corporations
- ---------------------
Hallmark Investment Group, Inc.
Summit Care Corporation
Summit Care Pharmacy, Inc.
Delaware Limited Liability Companies
- ------------------------------------
Alexandria Care Center, LLC
Alta Care Center, LLC
Anaheim Terrace Care Center, LLC
Baldwin Healthcare and Rehabilitation Center, LLC
Bay Crest Care Center, LLC
Briarcliff Nursing and Rehabilitation Center GP, LLC
Brier Oak on Sunset, LLC
Carehouse Healthcare Center, LLC
Carson Senior Assisted Living, LLC
Clairmont Beaumont GP, LLC
Clairmont Longview GP, LLC
Colonial New Braunfels GP, LLC
Colonial Tyler GP, LLC
Comanche Nursing Center GP, LLC
Coronado Nursing Center GP, LLC
Devonshire Care Center, LLC
Elmcrest Care Center, LLC
Eureka Healthcare and Rehabilitation Center, LLC
Flatonia Oak Manor GP, LLC
Fountain Care Center, LLC
Fountain Senior Assisted Living, LLC
Fountain View Subacute and Nursing Center, LLC
Granada Healthcare and Rehabilitation Center, LLC
Guadalupe Valley Nursing Center GP, LLC
Hallettsville Rehabilitation GP, LLC
Hallmark Rehabilitation GP, LLC
Hancock Park Rehabilitation Center, LLC
Hancock Park Senior Assisted Living, LLC
Hemet Senior Assisted Living, LLC
Highland Healthcare and Rehabilitation Center, LLC
Hospice Care Investments, LLC
Hospice Care of the West, LLC
Hospitality Nursing GP, LLC
Leasehold Resource Group, LLC
Live Oak Nursing Center GP, LLC
Louisburg Healthcare and Rehabilitation Center, LLC
Montebello Care Center, LLC
Monument Rehabilitation GP, LLC
Oak Crest Nursing Center GP, LLC
Oakland Manor GP, LLC
Pacific Healthcare and Rehabilitation Center, LLC
Richmond Healthcare and Rehabilitation Center, LLC
Rio Hondo Subacute and Nursing Center, LLC
Rossville Healthcare and Rehabilitation Center, LLC
Royalwood Care Center, LLC
Seaview Healthcare and Rehabilitation Center, LLC
Sharon Care Center, LLC
Shawnee Gardens Healthcare and Rehabilitation Center, LLC
19
Skilled Healthcare, LLC
Southwest Payroll Services, LLC
Southwood Care Center GP, LLC
Spring Senior Assisted Living, LLC
St. Elizabeth Healthcare and Rehabilitation Center, LLC
St. Luke Healthcare and Rehabilitation Center, LLC
Sycamore Park Care Center, LLC
Texas Cityview Care Center GP, LLC
Texas Heritage Oaks Nursing and Rehabilitation Center GP, LLC
The Clairmont Tyler GP, LLC
The Earlwood, LLC
The Heights of Summerlin, LLC
The Woodlands Healthcare Center GP, LLC
Town and Country Manor GP, LLC
Travelmark Staffing, LLC
Valley Healthcare Center, LLC
Villa Maria Healthcare Center, LLC
Vintage Park at Atchison, LLC
Vintage Park at Baldwin City, LLC
Vintage Park at Gardner, LLC
Vintage Part at Lenexa, LLC
Vintage Park at Louisburg, LLC
Vintage Park at Osawatomie, LLC
Vintage Park at Ottawa, LLC
Vintage Park at Paola, LLC
Vintage Park at Stanley, LLC
Wathena Healthcare and Rehabilitation Center, LLC
West Side Campus of Care GP, LLC
Willow Creek Healthcare Center, LLC
Woodland Care Center, LLC
Delaware Limited Partnerships
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Briarcliff Nursing and Rehabilitation Center, LP
Clairmont Beaumont, LP
Clairmont Longview, LP
Colonial New Braunfels Care Center, LP
Colonial Tyler Care Center, LP
Comanche Nursing Center, LP
Coronado Nursing Center, LP
Flatonia Oak Manor, LP
Guadalupe Valley Nursing Center, LP
Hallettsville Rehabilitation and Nursing Center, LP
Hallmark Rehabilitation, LP
Hospice of the West, LP
Hospitality Nursing and Rehabilitation Center, LP
Live Oak Nursing Center, LP
Monument Rehabilitation and Nursing Center, LP
Oak Crest Nursing Center, LP
Oakland Manor Nursing Center, LP
SHG Resources, LP
Southwood Care Center, LP
Texas Cityview Care Center, LP
Texas Heritage Oaks Nursing and Rehabilitation Center, LP
The Clairmont Tyler, LP
The Woodlands Healthcare Center, LP
Town and Country Manor, LP
Travelmark Staffing, LP
West Side Campus of Care, LP
20
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. 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 Securities 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 Initial Notes where such Initial Notes 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 Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Initial Notes, where such Initial Notes 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."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the 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 Initial Notes where such Initial Notes 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 Date, 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 [ ], 200[ ], all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.
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 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 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 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 Securities Act and any profit on any such resale of Exchange
Notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. 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 Securities Act.
For a period of 180 days after the Expiration Date 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 Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
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: ___________________________________________
___________________________________________
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 broker-dealer that will receive Exchange
Notes for its own account in exchange for Initial Notes that were acquired as a
result of market-making activities or other trading activities, it 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 Securities Act.