Execution Copy
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 21, 1998
by and among
GOLDEN NORTHWEST ALUMINUM, INC.
the SUBSIDIARY GUARANTORS
party to this Agreement
and
BANCBOSTON ROBERTSON STEPHENS INC.
and
LIBRA INVESTMENTS, INC.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 21, 1998 by and among Golden Northwest Aluminum,
Inc., an Oregon corporation (the "Company"), the Subsidiary Guarantors (as
defined in this Agreement) and BancBoston Robertson Stephens Inc. and Libra
Investments, Inc. (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
December 14, 1998 (the "Purchase Agreement"), by and among the Company, the
Initial Purchasers and the Subsidiary Guarantors which provides for the sale by
the Company to the Initial Purchasers of an aggregate of $150 million in
principal amount of the Company's 12% First Mortgage Notes due 2006 (the "First
Mortgage Notes"). In order to induce the Initial Purchasers to purchase the
First Mortgage Notes, 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 as set forth in Section 9
of the Purchase Agreement.
In consideration of the foregoing, the parties to this Agreement 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: An Affiliate of the Company is any person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, the Company.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of the closing of the sale of the First
Mortgage Notes pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes and the guarantees of the Subsidiary Guarantors
to be issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer open for
a period not less than the minimum period required pursuant to Section 3(b) of
this Agreement, and (iii) the delivery by the Company to the Registrar under the
Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of First Mortgage Notes that were tendered by Holders
of First Mortgage Notes pursuant to the Exchange Offer.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Company's 12% First Mortgage Notes due 2006 to be
issued pursuant to the Indenture in the Exchange Offer.
Exchange Offer: The registration by the Company under the Act of the
Exchange Notes and the guarantees of the Subsidiary Guarantors pursuant to a
Registration Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for Exchange
Notes in an aggregate principal amount equal to the aggregate principal amount
of the Transfer Restricted Securities tendered in such exchange offer by such
Holders.
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
proposes to sell the First Mortgage Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, to a limited number
of Institutional Accredited Investors as defined in Rule 501(a)(1), (2), (3) or
(7) under the Act and to non-U.S. persons pursuant to Regulation S under the
Act.
Holders: As defined in Section 2(b) of this Agreement.
Indemnified Holder: As defined in Section 8(a) of this Agreement.
Initial Purchasers: As defined in the preamble to this Agreement.
Indenture: The Indenture, dated as of December 21, 1998, among the
Company, US Trust Company, National Association, as trustee (the "Trustee"), and
the Subsidiary Guarantors, pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with its
terms.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The First Mortgage Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
of a government or agency.
Prospectus: The prospectus included in a Registration Statement, 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.
Record Holder: With respect to any additional interest payable
pursuant to Section 5 relating to Notes, each Person who is a Holder of Notes on
the record date with respect to the Interest Payment Date on which such
additional interest is payable.
Registration Default: As defined in Section 5 of this Agreement.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included in any such
Registration
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Statement, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Shelf Registration Statement: As defined in Section 4 of this
Agreement.
Subsidiary Guarantors: Those entities listed on Exhibit A to this
Agreement and by this reference incorporated in this Agreement.
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 First Mortgage Note, until the
earliest to occur of (a) the date on which such First Mortgage Note is exchanged
in the Exchange Offer for an Exchange Note which is entitled to be resold to the
public by the Holder of such Exchange Note without complying with the prospectus
delivery requirements of the Act, (b) the date on which such First Mortgage Note
has been effectively registered under the Act and has been disposed of in
accordance with a Shelf Registration Statement and (c) the date on which such
First Mortgage Note is distributed to the public pursuant to Rule 144 under the
Act and each Exchange Note until the date on which such Exchange 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 in the Exchange Offer Registration Statement).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
Section 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. 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 permissible under
applicable law or Commission policy, the Company and the Subsidiary Guarantors
shall (i) cause to be filed with the Commission as soon as practicable after the
Closing Date, but in no event later than 60 days after the Closing Date, a
Registration Statement under the Act relating to the Exchange Notes and the
Exchange Offer, (ii) use their best efforts to cause such Registration Statement
to become effective at the earliest possible time, but in no event later than
120 days after the Closing Date, (iii) in connection with the foregoing, (A)
file all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
if applicable, file a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange 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
Registration Statement, commence and Consummate the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting registration of the
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Exchange Notes to be offered in exchange for the Transfer Restricted Securities
and to permit resales of Notes held by Broker-Dealers as contemplated by Section
3(c) below.
(b) The Company and the Subsidiary Guarantors shall 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 after the date notice of the Registered Exchange Offer is mailed
to the Holders. The Company and the Subsidiary Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state securities laws.
No securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company and the Subsidiary Guarantors shall use
their 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 150 days after the Closing Date.
(c) The Company and the Subsidiary Guarantors shall indicate in a
"Plan of Distribution" section contained in the Prospectus forming a part of the
Exchange Offer Registration Statement that any Broker-Dealer who holds First
Mortgage Notes that were acquired for its own account as a result of
market-making activities or other trading activities (other than First Mortgage
Notes acquired directly from the Company or any Affiliate of the Company) may
exchange such First Mortgage Notes pursuant to the Exchange Offer; 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 any resales of the Exchange Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus forming a part of the
Exchange Offer Registration Statement. Such "Plan of Distribution" section shall
also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Company and the Subsidiary Guarantors shall use their best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for resales of Notes
acquired by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, 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 ending on the
earlier of (i) 180 days from the date on which the Exchange Offer Registration
Statement is declared effective and (ii) the date on which each such
Broker-Dealer is no longer required to deliver a prospectus in connection with
such resales.
The Company and the Subsidiary Guarantors shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers promptly upon
request at any time during such 180 day period (or such shorter period as
provided in the immediately preceding sentence) in order to facilitate such
resales.
Section 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Subsidiary
Guarantors are not required to file an Exchange Offer Registration Statement or
to consummate the Exchange Offer because
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the Exchange Offer is not permitted by applicable law or Commission policy, (ii)
the Exchange Offer is not Consummated within 150 days after the Closing Date, or
(iii) any Holder of Transfer Restricted Securities notifies the Company within
20 business days after the Consummation of the Exchange Offer (A) that such
Holder was prohibited by applicable law or Commission policy from participating
in the Exchange Offer, (B) that such Holder may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(C) that such Holder is a Broker-Dealer and holds First Mortgage Notes acquired
directly from the Company or one of its Affiliates, then the Company and the
Subsidiary Guarantors shall, at their cost
(x) as promptly as practicable, but no later than 60 days after
the earliest to occur of: (A) the date on which the Company notifies the
Initial Purchasers that the condition specified in clause (i) above is
satisfied, (B) the failure of the Company and the Subsidiary Guarantors to
consummate the Exchange Offer within the time period specified above, or
(C) the receipt by the Company of any notice specified above, cause to be
filed a shelf registration statement pursuant to Rule 415 under the Act,
which may be an amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement"), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted Securities
the Holders of which shall have provided the information required pursuant
to Section 4(b) of the Agreement; and
(y) as promptly as practicable, but no later than 120 days after
the earliest to occur of the events specified in (A), (B) and (C) in the
immediately preceding paragraph (x), use their best efforts to cause such
Shelf Registration Statement to be declared effective by the Commission.
The Company and the Subsidiary Guarantors shall use their best efforts to keep
such Shelf Registration Statement continuously effective, supplemented, amended
and current as required by and subject to the provisions of Sections 6(b) and
(c) of this Agreement to the extent necessary to ensure that it is available for
resales of Transfer Restricted Securities by the Holders 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 two years (as
extended pursuant to Section 6) after the effectiveness of the Shelf
Registration Statement, or such shorter period as will terminate when all
Transfer Restricted Securities covered by the Shelf Registration Statement have
been sold pursuant thereto; provided, however, that during any consecutive 365
day period, the Company may suspend the effectiveness of a Shelf Registration
Statement, in the event that, and for up to two periods of up to 45 consecutive
days, but no more than an aggregate of 60 days during any 365 day period if,
(a)(i) an event occurs and is continuing as a result of which the Shelf
Registration Statement would, in the Company's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading and (ii) if the Company
determines in good faith that the disclosure of such event at such time would
have a material adverse effect on the business, operations or prospects of the
Company or (b) the disclosure otherwise relates to a pending material business
transaction which has not yet been publicly disclosed.
(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 for such
information, such information as the Company may reasonably request for use in
connection with any
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Shelf Registration Statement or Prospectus or preliminary Prospectus included in
such Shelf Registration Statement. No Holder of Transfer Restricted Securities
shall be entitled to additional interest pursuant to Section 5 of this Agreement
unless and until such Holder shall have used its best efforts to provide all
such reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
Section 5. ADDITIONAL INTEREST
If (a) within 60 days after the Closing Date, the Exchange Offer
Registration Statement has not been filed with the Commission; (b) within 120
days after the Closing Date, the Exchange Offer Registration Statement has not
been declared effective; (c) within 150 days after the Closing Date, the
Registered Exchange Offer has not been Consummated; (d) a Shelf Registration
Statement is required to be filed and is not filed within the time specified for
such filing in this Agreement or is not declared effective within the time
specified for such effectiveness in this Agreement; or (e) after either the
Exchange Offer Registration Statement or the Shelf Registration Statement has
been declared effective, such Registration Statement thereafter ceases to be
effective or fails to be usable for its intended purpose during the period
specified in this Agreement that such Registration Statement is to be kept
continuously effective, without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(a) through (d), a "Registration Default"), the interest rate borne by the
Transfer Restricted Securities shall be increased by one quarter of one percent
per annum for the first 90 day period after the first such Registration Default.
The interest rate borne by such Transfer Restricted Securities (as so increased)
shall be increased by an additional one quarter of one percent per annum for
each subsequent 90-day period that such additional interest continues to accrue
under any circumstance; provided, however, that the aggregate increase in such
interest rate pursuant to this Section 5 shall not exceed one percent per annum.
The additional interest due shall be payable on each interest payment date to
the record Holder of Transfer Restricted Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of additional interest with respect
to such Transfer Restricted Securities will cease and the interest rate will
revert to its original rate.
All obligations of the Company and the Subsidiary 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
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Subsidiary Guarantors shall comply with all
of the provisions of Section 6(c) below, shall use their best efforts to effect
such exchange and to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof
(including compliance with the conditions to the no-action position taken by the
Commission staff in the letters referenced in this Section 6(a)). As a condition
to its participation in the Exchange Offer, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that
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(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 Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary course
of business. As a condition to its participation in the Exchange Offer, each
Holder using the Exchange Offer to participate in a distribution of the Exchange
Notes shall acknowledge and agree (which acknowledgment and agreement may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) that, if the resales are of Exchange Notes obtained by
such Holder in exchange for First Mortgage Notes acquired directly from the
Company or an Affiliate of the Company, then (1) it could not, under Commission
policy as in effect on the date of this Agreement, rely on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May 13,
1988) and Morgan Stanley and Co., Inc. (available June 5, 1991), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters, and (2) it 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.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Subsidiary Guarantors shall comply
with all of the provisions of Section 6(c) below and shall use their 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 of the Transfer Restricted Securities, and pursuant
thereto the Company will as expeditiously as possible 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 of the Transfer Restricted Securities.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement, the Company and the Subsidiary
Guarantors shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Act or any regulation under the Act,
financial statements of the Subsidiary Guarantors) 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 in such Registration Statement (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 Subsidiary Guarantors shall file promptly an
appropriate amendment or supplement to such Registration Statement or
Prospectus, or any document incorporated by reference in such documents, or
file any other required document, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A) or
(B), use their best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus become
usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 of this Agreement, as applicable, cause the
Prospectus to be supplemented by any required Prospectus supplement, and
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as so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with the applicable provisions of Rules 424, 430A and 462
under the Act, as applicable, 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 of such securities set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to 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
Registration Statement or any post-effective amendment to such Registration
Statement, 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 to such documents, or any document
incorporated by reference in such documents untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements in such documents 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 Subsidiary Guarantors shall use their best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included in such Registration
Statement 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 and
underwriter(s), if any, for a period of at least five 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 a selling Holder of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall reasonably
object within five business days after the receipt thereof. A selling
Holder or underwriter, if any, 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 otherwise 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 copies of such document to the selling Holders and to the
underwriter(s), if any, make the Company's and Subsidiary Guarantors'
representatives available for discussion of such document and other
customary due
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diligence matters, and include such information in such document prior to
the filing of such document as such selling Holders or underwriter(s), if
any, may reasonably request;
(vi) make available at reasonable times during normal business
hours for inspection by the selling Holders, any underwriter participating
in any disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and the Subsidiary Guarantors and
cause the Company's and the Subsidiary Guarantors' officers, directors and
employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing of such Registration
Statement and prior to its effectiveness;
(vii) if requested by any selling Holders or the underwriter(s),
if any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of
the Transfer Restricted Securities to be sold in such offering; 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 incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Notes covered by such Registration Statement or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment to such Registration Statement, including all documents
incorporated by reference in such Registration Statement and all exhibits
(including exhibits incorporated in such Registration Statement by
reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons may reasonably request; the Company and the
Subsidiary Guarantors hereby consent to the use of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus (including each preliminary
Prospectus) or any amendment or supplement thereto:
(xi) enter into such agreements (including an underwriting
agreement), 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
Registration Statement contemplated by this Agreement, all to such extent
as may be
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reasonably requested by the Initial Purchasers or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, the Company and the
Subsidiary Guarantors shall;
(A) furnish to the Initial Purchasers, each selling Holder
and each underwriter, if any, in such substance and scope as they may
request and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the Consummation of
the Exchange Offer and, if applicable, the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of Consummation of
the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial or
accounting officer of each of the Company and the Subsidiary
Guarantors, confirming, as of the date of such certificate, the
matters set forth in Sections 9(a), (b) and (c) of the Purchase
Agreement and such other matters as such parties may reasonably
request;
(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 Subsidiary Guarantors, covering the matters set
forth in Section 9(e) of the Purchase Agreement and such other
matter as such parties may reasonably request, and in any event
including a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company and the Subsidiary Guarantors,
representatives of the independent public accountants for the
Company and the Subsidiary Guarantors, the Initial Purchasers'
representatives and the Initial Purchasers' counsel in connection
with the preparation of such Registration Statement and the
related Prospectus and have considered the matters required to be
stated in such documents and the statements contained in such
documents, 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 facts provided to such counsel by officers and
other representatives of the Company and without independent
check or verification), no facts came to such counsel's attention
that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement
or any post-effective amendment to such Registration Statement
became effective, and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated in such documents or
necessary to make the statements in such documents not
misleading, or that the Prospectus 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 in such documents, in light of the
10
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) upon the request of any Holder (and at the expense
of the requesting Holder unless the requesting Holder is an
Initial Purchaser) or, in the case of any Underwritten
Registration or Underwritten Offering, any underwriter, a
customary comfort letter or agreed upon procedures letter, as
applicable under the Statement on Auditing Standards No. 72
issued by the American Institute of Certified Public Accountants,
Inc., dated as of the date of Consummation of the Exchange Offer
or 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 by underwriters in
connection with primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant to
Section 9(g) of the Purchase Agreement;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 below with respect to all parties to be
indemnified pursuant to such Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company and
the Subsidiary Guarantors contemplated in clause (A)(1) above cease to be true
and correct, the Company or the Subsidiary Guarantors shall so advise the
Initial Purchasers and the underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Subsidiary Guarantors to
cooperate with, the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification,
or exemption from registration or qualification, of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions as
the selling Holders or underwriter(s) 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 Shelf
Registration Statement; provided, however, that neither the Company nor the
Subsidiary Guarantors shall be required to register or qualify as a foreign
corporation where they are not now so qualified or to take any action that
would subject them 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 they are not now so subject;
(xiii) shall issue, upon the request of any Holder of First
Mortgage Notes covered by the Shelf Registration Statement, Exchange Notes,
having an aggregate principal
11
amount equal to the aggregate principal amount of First Mortgage Notes
surrendered to the Company by such Holder in exchange for such Exchange
Notes or being sold by such Holder; such Exchange Notes to be registered in
the name of such Holder or in the name of the purchaser(s) of such First
Mortgage Notes, as the case may be; in return, the First Mortgage Notes
held by such Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to any
sale of Transfer Restricted Securities made by such selling Holders or
underwriter(s);
(xv) use their best efforts to cause 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 of such Transfer Restricted
Securities or the underwriter(s), if any, to consummate the disposition of
such Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above:
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, and subject to the proviso at the end
of Section 4(a) above, prepare a supplement or post-effective amendment to
the Registration Statement or related Prospectus or any document,
incorporated in such documents by reference or file any other required
document so that, as subsequently delivered to the purchasers 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 not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the 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;
(xviii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any reasonable due diligence
investigation by any underwriter (including any "qualified independent
underwriter" that is required to be retained in accordance with the rules
and regulations of the NASD), and use their best efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xix) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to the Company's security holders with regard to the Registration
Statement, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be audited) for the
12-month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement;
12
(xx) 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 of Notes 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 their 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
(xxi) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) above, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) above,
or until it 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. If so directed by
the Company, each Holder will 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 such notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 above, as applicable, shall be extended by
the number of days during the period from and including the date of the giving
of such notice pursuant to Section 6(c)(iii)(D) above to and including the date
when each selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) above or shall have received notification from the Company
that the use of the Prospectus may be resumed.
Section 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the Subsidiary
Guarantors' performance of or compliance with this Agreement will be borne by
the Company or the Subsidiary Guarantors, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made by any Initial Purchaser or
Holder with the NASD (and, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the Exchange 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 Subsidiary Guarantors and, subject to Section 7(b) below, the
Holders of Transfer Restricted Securities; and (v) all fees and disbursements of
independent certified public accountants of the Company and the Subsidiary
Guarantors (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its and the Subsidiary
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.
13
(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 will reimburse the
Initial 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
Latham & Watkins or such other counsel as may 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.
Section 8. INDEMNIFICATION
(a) The Company and the Subsidiary Guarantors, jointly and severally,
agree 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 referred to in this Agreement 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 be referred to in this Agreement as an "Indemnified Holder"),
to the fullest extent lawful, from and against any and all losses, claims,
damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement to any such document), or any
omission or alleged omission to state in any such document a material fact
required to be stated in any such document or necessary to make the statements
in any such document not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by an untrue statement or omission
or alleged untrue statement or omission that is made in reliance upon and in
conformity with information relating to any of the Holders furnished in writing
to the Company by any of the Holders expressly for use in any such document.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company or the Subsidiary Guarantors, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly notify
the Company and the Subsidiary Guarantors in writing (provided, however, that
the failure to give such notice shall not relieve the Company or the Subsidiary
Guarantors of its obligations pursuant to this Agreement). Such Indemnified
Holder shall have the right to employ its own counsel in any such action and the
fees and expenses of such counsel shall be paid, as incurred, by the Company and
the Subsidiary Guarantors (regardless of whether it is ultimately determined
that an Indemnified Holder is not entitled to indemnification under this
Agreement). The Company and the Subsidiary Guarantors shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all Indemnified Holders, which firm shall be designated
by the Holders of a majority in principal amount of the First Mortgage Notes.
The Company and the Subsidiary Guarantors shall be liable for any settlement of
any such action or proceeding effected with the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company and the
Subsidiary
14
Guarantors agree to indemnify and hold harmless any Indemnified Holder from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company. The
Company and the Subsidiary Guarantors shall not, without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought under this Agreement (whether or not any Indemnified
Holder is a party thereto), unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Holder from
all liability arising out of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Subsidiary
Guarantors, and their respective directors, officers, and any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company, and the respective officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Company and the Subsidiary Guarantors to each of
the Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company, the Subsidiary Guarantors or
their respective directors or officers or any such controlling person in respect
of which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given the Company and
the Company or its directors or officers or such controlling person shall have
the rights and duties given to each Holder by the preceding paragraph. In no
event shall the liability of any selling Holder hereunder be greater than the
amount by which the amount of the proceeds received by such Holder upon the sale
of the Transfer Restricted Securities giving rise to such indemnification
obligation exceeds the amount of any damages that such Holder, its directors,
officers or controlling persons has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) above
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to in such
Sections, then each applicable 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
expenses in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Subsidiary Guarantors on the one hand and the
Holders on the other hand from their sale of Transfer Restricted Securities or
if such allocation is not permitted by applicable law, the relative fault of the
Company and the Subsidiary Guarantors on the one hand and of the Indemnified
Holder on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company
and the Subsidiary Guarantors on the one hand and of the Indemnified Holder on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Subsidiary Guarantors or by the Indemnified Holder 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 expenses 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.
15
The Company, the Subsidiary Guarantors and each Holder of Transfer
Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) 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 expenses 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 such action or claim.
Notwithstanding the provisions of this Section 8, none of the Holders (and its
related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the proceeds received by such Holder
with respect to its sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or controlling persons 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 under this Agreement and not joint.
Section 9. RULE 144A AND RULE 144
The Company and the Subsidiary Guarantors hereby agree with each
Holder, for so long as any Transfer Restricted Securities remain outstanding, to
make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale of such Transfer Restricted Securities
and any prospective purchaser of such Transfer Restricted Securities from 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. The Company and the Subsidiary Guarantors also agree
that, if any of them is subject to Section 13 or 15(d) of the Exchange Act, they
will make all filings required thereby in a timely manner in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144.
Section 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration under this
Agreement unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled under this Agreement to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
Section 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, however, that such investment bankers and managers must
be reasonably satisfactory to the Company.
16
Section 12. MISCELLANEOUS
(a) Remedies. The Company and the Subsidiary Guarantors agree that
monetary damages (including the additional interest contemplated by this
Agreement) would not be adequate compensation for any loss incurred by reason of
a breach by it of the provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company and the Subsidiary
Guarantors will not, on or after the date of this Agreement, enter into any
agreement with respect to their securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions of this Agreement. Except as otherwise described in the Offering
Memorandum, neither the Company nor the Subsidiary Guarantors have previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders under this Agreement
do not in any way conflict with and are not inconsistent with the rights granted
to the holders of the Company's securities under any agreement in effect on the
date of this Agreement.
(c) Adjustments Affecting the Notes. The Company the Subsidiary
Guarantors will not take any action, or permit any change to occur, with respect
to the Notes that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) 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 of this Agreement may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions of this
Agreement 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 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
being tendered.
(e) Notices. All notices and other communications provided for or
permitted under this Agreement 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:
Golden Northwest Aluminum, Inc.
3313 West Second Street
The Dalles, Oregon 97058
Telecopier No: (541) 296-6161
Attention: Brett Wilcox
17
With a copy to:
Stoel Rives LLP
Standard Insurance Center
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204
Telecopier No.: (503) 220-2480
Attention: Stephen E. Babson
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) 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, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties to this Agreement in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of this
Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICT OF LAW RULES.
(j) Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application of such provisions 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 in this Agreement shall not be affected or
impaired thereby.
(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase 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 to this Agreement in
respect of the subject matter contained in this Agreement. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to in this Agreement with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
GOLDEN NORTHWEST ALUMINUM, INC.
By:
-------------------------------------
Name:
Title:
GOLDENDALE HOLDING COMPANY
GOLDENDALE ALUMINUM COMPANY
NORTHWEST ALUMINUM COMPANY
NORTHWEST ALUMINUM SPECIALTIES, INC.
NORTHWEST ALUMINUM TECHNOLOGIES, LLC
By:
-------------------------------------
Name:
Title:
BANCBOSTON ROBERTSON STEPHENS INC.
LIBRA INVESTMENTS, INC
By: BANCBOSTON ROBERTSON STEPHENS INC.
By:
-----------------------------------
Name:
Title:
19
EXHIBIT A
Subsidiary Guarantors
Goldendale Holding Company
Goldendale Aluminum Company
Northwest Aluminum Company
Northwest Aluminum Specialties, Inc.
Northwest Aluminum Technologies, LLC
A-1