Exhibit 10.43
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 14, 2001
by and among
HOST MARRIOTT, L.P.,
as Issuer,
the Guarantors named herein
and
DEUTSCHE BANC ALEX. BROWN INC.,
BANC OF AMERICA SECURITIES LLC,
BEAR, STEARNS & CO. INC.,
CREDIT LYONNAIS SECURITIES (USA) INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION,
GOLDMAN, SACHS & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
MORGAN STANLEY & CO. INCORPORATED,
SCOTIA CAPITAL (USA) INC.,
and
SG COWEN SECURITIES CORPORATION
as Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of December 14, 2001, among HOST MARRIOTT, L.P., a Delaware
limited partnership (the "Issuer"), the Guarantor parties hereto and DEUTSCHE
BANC ALEX. BROWN INC., BANC OF AMERICA SECURITIES LLC, BEAR, STEARNS & CO. INC.,
CREDIT LYONNAIS SECURITIES (USA) INC., CREDIT SUISSE FIRST BOSTON CORPORATION,
GOLDMAN, SACHS & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, MORGAN
STANLEY & CO. INCORPORATED, SCOTIA CAPITAL (USA) INC. and SG COWEN SECURITIES
CORPORATION (collectively, the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
December 6, 2001, among the Issuer, the Guarantor parties thereto and the
Purchasers (the "Purchase Agreement"), which provides for the sale by the Issuer
and the Guarantors to the Purchasers of $450,000,000 aggregate principal amount
of 9 1/2% Series H Senior Notes due 2007 of the Issuer and the guarantees
thereof by the Guarantors (collectively, the "Securities"). In order to induce
the Purchasers to enter into the Purchase Agreement, the Issuer and the
Guarantors named herein have agreed to provide to the Purchasers and their
respective direct and indirect transferees, among other things, the registration
rights for the Securities set forth in this Agreement. The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings (and, unless otherwise indicated, capitalized terms used
herein without definition shall have the meanings ascribed to them by the
Purchase Agreement):
Advice: See Section 5.
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Applicable Period: See Section 2.
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Business Day: Any day, other than a Saturday, Sunday or federal
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holiday.
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Closing Date: The Closing Date as defined in the Purchase Agreement.
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Effectiveness Period: See Section 3.
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Effectiveness Target Date: The 180th day following the Closing Date.
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Event Date: See Section 4.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2.
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Exchange Registration Statement: See Section 2.
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Exchange Securities: See Section 2.
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Filing Date: The 90th day after the Closing Date.
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Guarantors: Subsidiary Guarantors, as defined in the Indenture.
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Holder: Any holder of Transfer Restricted Securities.
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Indenture: The Indenture, dated as of August 5, 1998, among Host
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Marriott, L.P. (formerly known as HMH Properties, Inc.), Host Marriott
Corporation, the Guarantor parties thereto and Marine Midland Bank (now HSBC
Bank USA), as trustee, as supplemented and amended, pursuant to which the
Securities are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Issuer: See the introductory paragraph of this Agreement.
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Liquidated Damages: See Section 4.
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Participating Broker-Dealer: See Section 2.
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Person: An individual, trustee, corporation, partnership, joint stock
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company, trust, unincorporated association, union, business association, firm or
other legal entity.
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act) as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Exchange Securities and/or the Transfer Restricted Securities (as
applicable) covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Purchasers: See the introductory paragraph to this Agreement.
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Registration Default: See Section 4.
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Registration Statement: Any registration statement of the Issuer and
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the Guarantors, including, but not limited to, the Exchange Registration
Statement, that covers any of the Transfer Restricted Securities pursuant to
the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated pursuant to the Securities Act, as
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currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as
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currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to the Securities Act, as
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such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities: See the introductory paragraphs to this Agreement.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2.
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Shelf Registration: See Section 3.
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TIA: The Trust Indenture Act of 1939, as amended.
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Transfer Restricted Securities: The Securities upon original issuance
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thereof and at all times subsequent thereto, until in the case of any such
Securities (i) a Registration Statement covering such Securities has been
declared effective by the SEC and such Securities have been disposed of in
accordance with such effective Registration Statement, (ii) such Securities have
been transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto), or are transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), (iii) such Securities have
otherwise been transferred and a new Security not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with the terms of the Indenture, or (iv) such Securities
cease to be outstanding.
Trustee: The trustee under the Indenture and, if existent, the
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trustee under any indenture governing the Exchange Securities.
Underwritten registration or underwritten offering: A registration in
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which securities of the Issuer or a Guarantor are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
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(a) The Issuer and the Guarantors agree to use their reasonable best
efforts to file with the SEC as soon as practicable after the Closing Date, but
in no event later than the Filing Date, an offer to exchange (the "Exchange
Offer") any and all of the Transfer Restricted Securities for a like aggregate
principal amount of debt securities of the Issuer and the Guarantors which are
substantially identical to the Securities, except that the identity of the
Guarantors may be different from those Subsidiary Guarantors that initially
guaranteed the Securities pursuant to the Indenture so long as the Securities
are at all times guaranteed in compliance with the Indenture (the "Exchange
Securities") (and which are entitled to the benefits of the Indenture or
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a trust indenture which is identical to the Indenture (other than such changes
to the Indenture or any such identical trust indenture as are necessary to
comply with any requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA), except that the Exchange Securities shall have been registered pursuant to
an effective Registration Statement in compliance with the Securities Act. The
Exchange Offer will be registered pursuant to the Securities Act on the
appropriate form (the "Exchange Registration Statement") and will comply with
all applicable tender offer rules and regulations promulgated pursuant to the
Exchange Act and shall be duly registered or qualified pursuant to all
applicable state securities or Blue Sky laws. The Exchange Offer shall not be
subject to any condition, other than that the Exchange Offer does not violate
any applicable law or interpretation of the Staff of the SEC. No securities
shall be included in the Registration Statement covering the Exchange Offer
other than the Transfer Restricted Securities and the Exchange Securities. The
Issuer and the Guarantors agree to use their reasonable best efforts to (x)
cause the Exchange Registration Statement to become effective pursuant to the
Securities Act on or before the Effectiveness Target Date; (y) keep the Exchange
Offer open for not less than 20 Business Days (or such longer period required by
applicable law) after the date that the notice of the Exchange Offer referred to
below is mailed to Holders; and (z) consummate the Exchange Offer within 210
days after the Closing Date. Each Holder who participates in the Exchange Offer
will be required to represent that any Exchange Securities received by it will
be acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any person to participate in the distribution of the Exchange
Securities, and that such Holder is not an affiliate of the Issuer within the
meaning of Rule 405 of the Securities Act (or that if it is such an affiliate,
it will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable). Each Holder that is not a
Participating Broker-Dealer will be required to represent that it is not engaged
in, and does not intend to engage in, the distribution of the Exchange
Securities. Each Holder that is a Participating Broker-Dealer will be required
to acknowledge that it will deliver a prospectus as required by law in
connection with any resale of such Exchange Securities. Upon consummation of the
Exchange Offer in accordance with this Agreement, the Issuer and the Guarantors
shall have no further obligation to register Transfer Restricted Securities
pursuant to Section 3 of this Agreement.
(b) The Issuer and the Guarantors shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Purchasers, which shall contain a
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summary statement of the positions taken or policies made by the Staff of the
SEC 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 Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). Such "Plan of Distribution" section shall also
allow the use of the Prospectus by all persons subject to the prospectus
delivery requirements of the Securities Act, including all Participating Broker-
Dealers, and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Securities.
The Issuer and the Guarantors shall use their reasonable best efforts
to keep the Exchange 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 Securities;
provided that such period shall not exceed 180 days after consummation of the
Exchange Offer (or such longer period if extended pursuant to the last paragraph
of Section 5) (the "Applicable Period").
In connection with the Exchange Offer, the Issuer shall:
(a) mail as promptly as practicable to each Holder a copy of the
prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(b) utilize the services of a Depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York; and
(c) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer, the
Issuer and the Guarantors shall:
(i) accept for exchange all Securities properly tendered and not
validly withdrawn pursuant to the Exchange Offer;
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(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Securities equal in principal amount to the
Securities of such Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer,
applicable interpretations of the Staff of the SEC do not permit the Issuer and
the Guarantors to effect the Exchange Offer as contemplated herein, or (2) the
Exchange Offer is commenced and not consummated within 210 days of the Closing
Date for any reason, then the Issuer shall promptly deliver to the Holders and
the Trustee written notice thereof (the "Shelf Notice") and the Issuer and the
Guarantors shall file a Registration Statement pursuant to Section 3. Following
the delivery of a Shelf Notice to the Holders of Transfer Restricted Securities,
the Issuer and the Guarantors shall not have any further obligation to conduct
the Exchange Offer pursuant to this Section 2, provided that the Issuers and the
Guarantors shall have the right, nonetheless, to proceed to consummate the
Exchange Offer notwithstanding their obligations pursuant to this Section 2(c)
(and, upon such consummation, their obligation to consummate a Shelf
Registration shall terminate).
3. Shelf Registration
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If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Shelf Registration. The Issuer and the Guarantors shall use
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their reasonable best efforts to prepare and file with the SEC, as promptly as
practicable following the delivery of the Shelf Notice, a Registration Statement
for an offering to be made on a continuous basis pursuant to Rule 415 covering
all of the Transfer Restricted Securities (the "Shelf Registration"). The Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Transfer Restricted Securities for resale by the Holders in
the manner or manners reasonably designated by them (including, without
limitation, one or more underwritten offerings). The Issuer and the Guarantors
shall not permit any securities other than the Transfer Restricted Securities to
be included in the Shelf Registration. The Issuer and the Guarantors shall use
their reasonable best efforts, as described in Section 5(b), to cause the Shelf
Registration to be declared effective pursuant to the Securities Act as promptly
as practicable following the filing thereof and to keep the Shelf Registration
continuously effective under the Securities Act until the date which is 24
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months from the Closing Date, or such shorter period ending when either (1) all
Transfer Restricted Securities covered by the Shelf Registration have been sold
in the manner set forth and as contemplated in the Shelf Registration or (2)
there ceases to be outstanding any Transfer Restricted Securities (the
"Effectiveness Period").
(b) Supplements and Amendments. The Issuer and the Guarantors shall
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use their reasonable best efforts to keep the Shelf Registration Statement
continuously effective by supplementing and amending the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the holders of a majority in
aggregate principal amount of the Transfer Restricted Securities covered by such
Registration Statement or by any underwriter of such Transfer Restricted
Securities.
4. Liquidated Damages
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(a) The Issuer, the Guarantors and the Purchasers agree that the
Holders of Transfer Restricted Securities will suffer damages if the Issuer or
the Guarantors fail to fulfill their obligations pursuant to Section 2 or
Section 3 hereof and that it would not be possible to ascertain the extent of
such damages. Accordingly, in the event of such failure by Issuer or the
Guarantors to fulfill such obligations, the Issuer and the Guarantors hereby
agree to pay liquidated damages ("Liquidated Damages") to each Holder of
Transfer Restricted Securities under the circumstances and to the extent set
forth below:
(i) if neither the Exchange Registration Statement nor the Shelf
Registration has been filed with the SEC on or prior to the Filing Date; or
(ii) if neither the Exchange Registration Statement nor the Shelf
Registration is declared effective by the SEC on or prior to the
Effectiveness Target Date; or
(iii) if an Exchange Registration Statement is declared effective by
the SEC, on or prior to 210 days after the Closing Date, the Issuer and the
Guarantors have not exchanged Exchange Securities for all Securities
validly tendered in accordance with the terms of the Exchange Offer; or
(iv) the Shelf Registration has been declared effective by the SEC
and such Shelf Registration ceases to be effective or usable at any time
during
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the Effectiveness Period, without being succeeded on the same day
immediately by a post-effective amendment to such Registration Statement
that cures such failure and that is itself immediately declared effective
on the same day;
(any of the foregoing, a "Registration Default") then, with respect to the first
90-day period following such Event Date (as defined below), the Issuer and the
Guarantors shall pay to each Holder of Transfer Restricted Securities Liquidated
Damages in an amount equal to $.05 per week per $1,000 principal amount of
Transfer Restricted Securities held by such Holder for each week or portion
thereof that the Registration Default continues. The amount of such Liquidated
Damages will increase by an additional $.05 per week per $1,000 principal amount
of Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured; provided, however, that
Liquidated Damages shall not at any time exceed $.30 per week per $1,000
principal amount of Transfer Restricted Securities. Following the cure of all
Registration Defaults relating to any Transfer Restricted Securities, the
accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease. A Registration Default under clause (i) above shall be
cured on the date that either the Exchange Registration Statement or the Shelf
Registration is filed with the SEC; a Registration Default under clause (ii)
above shall be cured on the date that either the Exchange Registration Statement
or the Shelf Registration is declared effective by the SEC; a Registration
Default under clause (iii) above shall be cured on the earlier of the date (A)
the Exchange Offer is consummated or (B) the Issuer delivers a Shelf Notice to
the Holders of Restricted Securities; and a Registration Default under clause
(iv) above shall be cured on the earlier of (A) the date the Shelf Registration
is declared effective or (B) the Effectiveness Period expires.
(b) The Issuer shall notify the Trustee within one Business Day after
each and every date on which a Registration Default occurs (an "Event Date").
Liquidated Damages shall be paid by the Issuer and the Guarantors to the Holders
by wire transfer of immediately available funds to the accounts specified by
them or by mailing checks to their registered addresses if no such accounts have
been specified on or before the semi-annual interest payment date provided in
the Indenture (whether or not any interest is then payable on the Securities).
Each obligation to pay Liquidated Damages shall be deemed to commence accruing
on the applicable Event Date and to cease accruing when all Registration
Defaults have been cured. In no event shall the Issuer pay Liquidated Damages
in excess of the applicable maximum weekly amount set forth above, regardless of
whether one or multiple Registration Defaults exist.
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(c) Notwithstanding anything to the contrary in this Section 4,
neither the issuance by the Issuer of a notice (i) of the type set forth in
Section 5(c)(vii) declaring the Shelf Registration to be unusable during the
pendency of the Material Activity (as defined in Section 5(c)(viii)) nor (ii) of
the type set forth in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), 5(c)(v) and
5(c)(vi), shall be deemed to be a Registration Default and no Liquidated Damages
shall be payable or accrue with respect thereto; provided, that in the event
the aggregate number of days in any consecutive twelve-month period for which
all notices referenced above are issued and effective exceeds 30 days, then
Liquidated Damages shall be payable in accordance with Sections 4(a) and 4(b)
above for the number of such days in excess of 30 days in the aggregate.
5. Registration Procedures
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In connection with the registration of any Exchange Securities or
Transfer Restricted Securities pursuant to Sections 2 or 3 hereof, the Issuer
and the Guarantors shall effect such registration to permit the sale of such
Exchange Securities or Transfer Restricted Securities (as applicable) in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Issuer and the Guarantors shall:
(a) Prepare and file with the SEC, a Registration Statement or
Registration Statements as prescribed by Section 2 or 3, and to use their
reasonable best efforts to cause such Registration Statement to become effective
and remain effective as provided herein; provided that, if (1) such filing is
pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the Issuer
shall, if requested, furnish to and afford the Holders of the Transfer
Restricted Securities and each such Participating Broker-Dealer, as the case may
be, covered by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (at least 3 Business Days
prior to such filing, or such later date as is reasonable under the
circumstances). The Issuer and the Guarantors shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto in respect of
which the Holders, pursuant to this Agreement, must be afforded an opportunity
to review prior to the filing of such document, if the
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Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities covered by such Registration Statement, or such Participating Broker-
Dealer, as the case may be, their counsel, or the managing underwriters, if any,
shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been sold;
cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
of the SEC promulgated thereunder applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus; the Issuer and the Guarantors shall be deemed
not to have used their reasonable best efforts to keep a Registration Statement
effective during the Applicable Period if they voluntarily take any action that
would result in selling Holders of the Transfer Restricted Securities covered
thereby or Participating Broker-Dealers seeking to sell Exchange Securities not
being able to sell such Transfer Restricted Securities or such Exchange
Securities during that period, unless (i) such action is required by applicable
law, or (ii) such action is taken by them in good faith and for valid business
reasons (not including avoidance of their obligations hereunder), including the
acquisition or divestiture of assets.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Transfer Restricted Securities,
or each known Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, promptly and confirm such notice in writing,
(i) when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any post-
effective amend ment, when the same has become effective (including in such
notice a written statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement
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or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a prospectus is required by the Securities
Act to be delivered in connection with sales of the Transfer Restricted
Securities the representations and warranties of the Issuer or any Guarantor
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(l) below cease to be true and correct, (iv) of the receipt by the
Issuer or any Guarantor of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration Statement or
any of the Transfer Restricted Securities or the Exchange Securities to be sold
by any Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation of any proceeding for such purpose, (v) of the happening of any event
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any 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 not misleading, and that in the case of the Prospectus, it will not
contain any 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, (vi)
of the Issuer's and the Guarantors' reasonable determination that a post-
effective amendment to a Registration Statement would be appropriate and (vii)
if (A) the Issuer is engaged in or proposes to engage in discussions or
negotiations with respect to, or has proposed or taken a substantial step to
commence, or there is otherwise pending, any material merger, acquisition,
tender offer, financing or other transaction (any such negotiation, step, event
or state of facts being herein called a "Material Activity"), (B) such Material
Activity would, in the reasonable opinion of counsel of the Issuer, require
disclosure in a prospectus to be delivered in connection with the sale of the
Transfer Restricted Securities to be sold in compliance with law, and (C) such
disclosure would, in the reasonable judgment of the Issuer, be adverse to its
interests; provided, that the Issuer shall have no obligation to include in any
notice contemplated in (vii) above any reference to or description of the facts
upon which the Issuer is delivering such notice.
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(d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Transfer Restricted Securities
or the Exchange Securities (as applicable) to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued,
to use their reasonable best efforts to obtain the withdrawal of any such order
at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, or such Holders or counsel reasonably request to
be included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Issuer has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement with such information as the managing
underwriter, if any, or such Holders or counsel reasonably request to be
included therein.
(f) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, furnish to each selling Holder of Transfer Restricted
Securities and to each such Participating Broker-Dealer who so requests and to
counsel and each managing underwriter, if any, without charge, one conformed
copy of the Registration Statement or Registration Statements and each post-
effective amendment thereto, including financial statements and schedules, and,
if requested, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-
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Dealer who seeks to sell Exchange Securities during the Applicable Period,
deliver to each selling Holder of Transfer Restricted Securities, or each such
Participating Broker-Dealer, as the case may be, their counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each amendment
or supplement thereto and any documents incorporated by reference therein as
such Persons may reasonably request; and, subject to the last paragraph of this
Section 5, the Issuer and the Guarantors hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Securities or each such Participating Broker-
Dealer, as the case may be, and the underwriters or agents, if any, and dealers
(if any), in connection with the offering and sale of the Transfer Restricted
Securities covered by or the sale by Participating Broker-Dealers of the
Exchange Securities pursuant to such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Transfer Restricted Securities or
any delivery of a Prospectus contained in the Exchange Registration Statement by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, to use its reasonable best efforts to register or qualify,
and to cooperate with the selling Holders of Transfer Restricted Securities or
each such Participating Broker-Dealer, as the case may be, the underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Transfer Restricted Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as any selling Holder, Participating Broker-
Dealer, or the managing underwriters, if any, reasonably request in writing,
provided that where Exchange Securities held by Participating Broker-Dealers or
Transfer Restricted Securities are offered other than through an underwritten
offering, the Issuer and the Guarantors agree to cause their counsel to perform
Blue Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Securities held by Participating Broker-
Dealers or the Transfer Restricted Securities covered by the applicable
Registration Statement; provided that the Issuer and the Guarantors shall not be
required to (A) qualify generally to do business in any jurisdiction where they
are not then so qualified, (B) take any action that would subject them to
general service of process in any such jurisdiction where they are not then so
14
subject or (C) subject themselves to taxation in excess of a nominal dollar
amount in any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3, cooperate
with the selling Holders of Transfer Restricted Securities and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company, and enable such Transfer
Restricted Securities to be in such denominations and registered in such names
as the managing underwriters, if any, or Holders may reasonably request.
(j) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(c) (v) or 5(c) (vi) above, as promptly as practicable prepare and (subject to
Section 5(a) above) file with the SEC, at the expense of the Issuer and the
Guarantors, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Transfer
Restricted Securities being sold thereunder or to the purchasers of the Exchange
Securities to whom such Prospectus will be delivered by a Participating Broker-
Dealer, any such Prospectus will 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 light of the circumstances under which they
were made, not misleading.
(k) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, (i) provide the Trustee with
certificates for the Transfer Restricted Securities in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number for
the Transfer Restricted Securities.
(l) In connection with an underwritten offering of Transfer Restricted
Securities pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings and take all such other
actions as are reasonably requested by the managing underwriters in order to
expedite or
15
facilitate the registration or the disposition of such Transfer Restricted
Securities, and in such connection, (i) make such representations and warranties
to the underwriters, with respect to the business of the Issuer, the Guarantors
and their subsidiaries and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Issuer and Guarantors and updates thereof in form and substance
reasonably satisfactory to the managing underwriters, addressed to the
underwriters covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
underwriters; (iii) obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Issuer and the Guarantors (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Issuer or the Guarantors or of any business acquired by any of
them for which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as are reasonably requested by
underwriters as permitted by Statement on Auditing Standards No. 72; and (iv) if
an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Transfer Restricted
Securities covered by such Registration Statement and the managing underwriters
or agents) with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(m) If (1) a Shelf Registration is filed pursuant to Section 3, or (2)
a Prospectus contained in an Exchange Registration Statement filed pursuant to
Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make available for inspection by any selling Holder of such
Transfer Restricted Securities being sold, or each such Participating Broker-
Dealer, as the case may be, any underwriter participating in any such
disposition of Transfer Restricted Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during reasonable
16
business hours, all financial and other records, pertinent corporate documents
and properties of the Issuer, the Guarantors and their subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuer, the Guarantors and their subsidiaries to
supply all information in each case reasonably requested by any such Inspector
in connection with such Registration Statement. Records which the Issuer
determines, in good faith, to be confidential and any Records which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors, unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (iii) the information in such Records has been made
generally available to the public.
(n) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Securities, as the case may be, and cause the
Indenture to be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the holders of the Transfer Restricted Securities,
to effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute, and use
its best efforts to cause such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable such indenture to be so qualified in a timely
manner.
(o) Comply with all applicable rules and regulations of the SEC and,
as soon as reasonably practicable, make generally available to its
securityholders consolidated earnings statements of the Issuer (including a
condensed consolidating footnote if required under SEC rules) (which need not be
certified by an independent public accountant) that satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
(p) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Securities by Holders to the Issuer (or to such other Person
as directed by the Issuer) in exchange for the Exchange Securities, the Issuer
and the Guarantors shall mark, or cause to be marked, on such Transfer
Restricted Securities that such Transfer Restricted Securities are being
cancelled in exchange for the
17
Exchange Securities; in no event shall such Transfer Restricted Securities be
marked as paid or otherwise satisfied.
(q) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(r) Use their best efforts to take all other steps necessary to effect
the registration of the Transfer Restricted Securities covered by a Registration
Statement contemplated hereby.
(s) Use their best efforts to cause the Transfer Restricted Securities
or the Exchange Securities, as applicable, covered by an effective registration
statement required by Section 2 or Section 3 hereof to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Transfer Restricted Securities relating to such
registration statement or the managing underwriters in connection therewith, if
any.
The Issuer may require each seller of Transfer Restricted Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuer such information regarding such seller or Participating
Broker-Dealer and the distribution of such Transfer Restricted Securities or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, as the Issuer may, from time to time, reasonably request. The Issuer
may exclude from such registration the Transfer Restricted Securities of any
seller or Participating Broker-Dealer who fails to furnish such information
within a reasonable time after receiving such request.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, that, upon receipt of any notice from the Issuer of the happening of any
event of the kind described in Section 5(c) (ii), 5(c) (iv), 5(c) (v), 5 (c)
(vi) or 5(c)(vii), such Holder will forthwith discontinue disposition of such
Transfer Restricted Securities covered by such Registration Statement or
Prospectus or Exchange Securities to be sold by such Participating Broker-
Dealer, as the case may be, until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(j), or until it is
advised in writing (the "Advice") by the Issuer that the use
18
of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto; provided, that in the case of an event of the
kind described in Section 5(c)(vii), the Issuer may only cause such
discontinuing of dispositions for any number of periods not to exceed 30 days in
the aggregate in any consecutive 12-month period.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer shall be borne by the Issuer and the
Guarantors, whether or not the Exchange Offer or a Shelf Registration is filed
or becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Transfer Restricted Securities or
Exchange Securities and determination of the eligibility of the Transfer
Restricted Securities or Exchange Securities for investment under the laws of
such jurisdictions (x) where the Holders of Transfer Restricted Securities are
located, in the case of the Exchange Securities, or (y) as provided in Section
5(h), in the case of Transfer Restricted Securities or Exchange Securities to be
sold by a Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Transfer Restricted Securities or Exchange Securities in a form
eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriters, if any, or, in respect of Transfer Restricted Securities or
Exchange Securities to be sold by any Participating Broker-Dealer during the
Applicable Period, by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities included in any Registration Statement or of
such Exchange Securities, as the case may be), (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuer and the
Guarantors, (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(1) (iii) (including, without limitation,
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance), (vi) the fees and expenses of any "qualified
independent underwriter" or other independent appraiser participating in an
offering pursuant to NASD Conduct Rule 2720, (vii) rating agency fees, (viii)
Securities Act liability insurance, if the Issuer and the Guarantors desire such
insurance, (ix) fees and expenses of all other Persons retained by the Issuer
and the Guarantors, (x) internal expenses of the Issuer
19
and the Guarantors (including, without limitation, all salaries and expenses of
officers and employees of the Issuer and the Guarantors performing legal or
accounting duties), (xi) the expense of any annual audit, (xii) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange and (xiii) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, and indentures. Nothing
contained in this Section 6 shall create an obligation on the part of the Issuer
or any Guarantor to pay or reimburse any Holder for any underwriting commission
or discount attributable to any such Holder's Transfer Restricted Securities
included in an underwritten offering pursuant to a Registration Statement filed
in accordance with the terms of this Agreement, or to guarantee such Holder any
profit or proceeds from the sale of such Securities.
(b) In connection with any Shelf Registration hereunder, the Issuer
and the Guarantors shall reimburse the Holders of the Transfer Restricted
Securities being registered in such registration for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Transfer Restricted Securities to be included in such Registration Statement
and other reasonable out-of-pocket expenses of the Holders of Transfer
Restricted Securities reasonably incurred in connection with the registration of
the Transfer Restricted Securities.
7. Indemnification
---------------
The Issuer and the Guarantors agree to indemnify and hold harmless (i)
each of the Purchasers, each Holder of Transfer Restricted Securities, each
Holder of Exchange Securities, each Participating Broker-Dealer, (ii) each
person, if any, who controls (within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act) any such Person (any of the persons referred to
in this clause (ii) being hereinafter referred to as a "controlling person"),
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any of such Person or any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Indemnified Person") 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 Person) directly or indirectly caused by, related to, based upon,
20
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 (as amended or supplemented if the Issuer shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein a
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, except insofar as such losses, claims, damages or liabilities are
caused by (i) any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Indemnified Person furnished to the Issuer or any underwriter in writing by
such Indemnified Person expressly for use therein, or (ii) any untrue statement
contained in or omission from a preliminary prospectus if a copy of the
Prospectus (as then amended or supplemented, if the Issuer shall have furnished
to or on behalf of the Holder participating in the distribution relating to the
relevant Registration Statement any amendments or supplements thereto) was not
sent or given by or on behalf of such Holder to the person asserting any such
losses, liabilities, claims, damages or expenses who purchased Securities, if
such is required by law at or prior to the written confirmation of the sale of
such Securities to such person and the untrue statement contained in or omission
from such preliminary prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented). The Issuer and the Guarantors shall
notify the Holders promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation of
which it or they shall have become aware in connection with the matters
addressed by this Agreement which involves the Issuer, any Guarantor or an
Indemnified Person.
In connection with any Registration Statement in which an Indemnified
Person is participating, such Indemnified Person agrees, severally and not
jointly, to indemnify and hold harmless the Issuer, each Guarantor and their
directors and officers and each person who controls the Issuer and the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Issuer and the Guarantors to each Indemnified Person, but only with reference to
information relating to such Indemnified Person furnished to the Issuer in
writing by such Indemnified Person expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Indemnified Person pursuant to this paragraph
shall in no event exceed the net proceeds received by such Indemnified Person
from sales of Transfer Restricted Securities giving rise to such obligations.
21
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
person") in writing, and the indemnifying person, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding. 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 person
and the indemnified party shall have mutually agreed in writing to the contrary,
(ii) the indemnifying person failed promptly to assume the defense and employ
counsel reasonably satisfactory to the indemnified party or (iii) the named
parties to any such action (including any impleaded parties) include both such
indemnified party and the indemnifying person, or any affiliate of the
indemnifying person and such indemnified party shall have been reasonably
advised by counsel that either (x) there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying person or such affiliate of the indemnifying person or (y) a
conflict may exist between such indemnified party and the indemnifying person or
such affiliate of the indemnifying person (in which case the indemnifying person
shall not have the right to assume the defense of such action on behalf of such
indemnified party), it being understood, however, that the indemnifying person
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all such indemnified parties, which firm shall be designated in writing by
indemnified parties who sold a majority in interest of Transfer Restricted
Securities sold by all such indemnified parties and any such separate firm for
the Issuer and the Guarantors, their directors, their officers and such control
persons of the Issuer and the Guarantors shall be designated in writing by the
Issuer. The indemnifying person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
person agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying person
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party
22
and indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities, or expenses referred to therein (other
than by reason of the exceptions provided therein), then each indemnifying
person under such paragraphs, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, or expenses (i)
in such proportion as is appropriate to reflect the relative benefits of the
indemnified party on the one hand and the indemnifying person(s) on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities, or expenses or (ii) if the allocation provided by
clause (i) above 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 person(s) and the
indemnified party, as well as any other relevant equitable considerations. The
relative fault of the Issuer and the Guarantors on the one hand and any
Indemnified Persons 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 Issuer and the Guarantors or by such Indemnified
Persons and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if such indemnified parties were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Indemnified Person be required to contribute any amount in excess of the amount
by which proceeds received by such Indemnified Person from sales of Transfer
Restricted Securities exceeds the amount of any damages that such Indemnified
Person
23
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the indemnifying persons may
otherwise have to the indemnified parties referred to above. The Indemnified
Persons' obligations to contribute pursuant to Section 7 are several in
proportion to the respective principal amount of Securities sold by each of the
Indemnified Persons hereunder and not joint.
8. Rules 144 and 144A
------------------
The Issuer and the Guarantors covenant that they will file the reports
required to be filed by them pursuant to the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
and, if at any time the Issuer and the Guarantors are not required to file such
reports, they will, upon the request of any Holder of Transfer Restricted
Securities, make available information required by Rules 144 and 144A under the
Securities Act in order to permit sales pursuant to Rule 144 and Rule 144A. The
Issuer and the Guarantors further covenant that they will take such further
action as any Holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 and Rule 144A
under the Act, as such Rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
--------------------------
(a) If any of the Transfer Restricted Securities 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 manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities included in such offering and reasonably
acceptable to the Issuer.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder, unless such Holder (a) agrees to sell such
24
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if requested
(pursuant to a timely written notice) by the managing underwriters in an
underwritten offering or placement agent in a private offering of the Company's
or the Guarantors' debt securities, not to effect any private sale or
distribution (including a sale pursuant to Rule 144(k) and Rule 144A, but
excluding nonpublic sales to any of its affiliates, officers, directors,
employees and controlling persons) of any of the Securities except pursuant to
an Exchange Offer, during the period beginning 10 days prior to, and ending 90
days after, the closing date of the underwritten offering.
The foregoing provisions shall not apply to any holder of Transfer
Restricted Securities if such holder is prevented by applicable statute or
regulation from entering into any such agreement.
The Issuer and the Guarantors agree without the written consent of the
managing underwriters in an underwritten offering of Transfer Restricted
Securities covered by a Registration Statement filed pursuant to Section 3
hereof, not to effect any public or private sale or distribution of its
respective debt securities, including a sale pursuant to Regulation D or Rule
144A under the Securities Act, during the period beginning 10 days prior to, and
ending 90 days after, the closing date of each underwritten offering made
pursuant to such Registration Statement (provided, however, that such period
shall be extended by the number of days from and including the date of the
giving of any notice pursuant to Section 5(c) (v) or (c) (vi) hereof to and
including the date when each seller of Transfer Restricted Securities covered by
such Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 5(j) hereof).
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Issuer of any of its
--------
obligations under this Agreement, each Holder of Transfer Restricted Securities,
in addition to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Purchasers, in the Purchase Agreement, or
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this
25
Agreement. The Issuer and the Guarantors agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by them of
any of the provisions of this Agreement and hereby further agree that, in the
event of any action for specific performance in respect of such breach, they
shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer and the Guarantors have
--------------------------
not, as of the date hereof, and they shall not, after the date of this
Agreement, enter into any agreement with respect to any of their respective
securities that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Issuer and the Guarantors have not entered, and will not
enter, into any agreement with respect to any of their respective securities
which will grant to any Person piggy-back registration rights with respect to a
Registration Statement.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuer has obtained the written consent of Holders
of at least a majority of the then outstanding aggregate principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Transfer Restricted Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Transfer Restricted Securities may be given by Holders of at
least a majority in aggregate principal amount of the Transfer Restricted
Securities being sold by such Holders pursuant to such Registration Statement;
provided that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(d) Notices. All notices and other communications (including without
-------
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Securities, at the most
current address given by the Trustee to the Issuer; and
26
(ii) if to the Issuer or the Guarantors, 10400 Fernwood Road,
Bethesda, Maryland 20817, Attention: Elizabeth A. Abdoo, Senior Vice
President and General Counsel.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) 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. The Issuer and
the Guarantors agree that the Holders of the Securities shall be third party
creditor beneficiaries to the agreements made hereunder by the Purchasers and
the Issuer, the Guarantors and each Holder shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS
AND RULE 327(b) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS
27
OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
(k) Securities Held by the Issuer, Guarantors, or Their Affiliates.
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Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Issuer, the Guarantors, or their affiliates (as such term
is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(l) Guarantor Information. The Issuer and the Guarantors shall
---------------------
prepare and furnish in any Exchange Registration Statement, Shelf Registration
or other document such information, including historical and pro forma financial
information, concerning each Guarantor as may be required by applicable
securities laws, accounting guidelines, or rules and regulations of applicable
securities regulatory authorities, including the SEC, in order to have any
Registration Statement pursuant to this Agreement filed, declared and kept
effective as contemplated by this Agreement. Each of the Issuer and each
Guarantor agrees that the preparing and furnishing of such information within
the time periods contemplated in this Agreement constitute "reasonable efforts"
on such person's part for all purposes of this Agreement.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ISSUER
------
HOST MARRIOTT, L.P.
By:______________________________
Name:
Title:
GUARANTORS
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AIRPORT HOTELS LLC,
HOST OF BOSTON, LTD.,
HOST OF HOUSTON, LTD,
HOST OF HOUSTON 1979,
CHESAPEAKE FINANCIAL SERVICES LLC,
CITY CENTER INTERSTATE PARTNERSHIP LLC,
HMC RETIREMENT PROPERTIES, L.P.,
BY: DURBIN LLC
HMH MARINA LLC,
FARRELL'S ICE CREAM PARLOUR RESTAURANTS LLC,
HMC ATLANTA LLC,
HMC BCR HOLDINGS LLC,
HMC BURLINGAME LLC,
HMC CALIFORNIA LEASING LLC,
HMC CAPITAL LLC,
HMC CAPITAL RESOURCES LLC,
HMC PARK RIDGE LLC,
HMC PARTNERSHIP HOLDINGS LLC,
HOST PARK RIDGE LLC,
HMC SUITES LLC,
HMC SUITES LIMITED PARTNERSHIP,
BY: HMC SUITES LLC
PRM LLC,
29
WELLSFORD-PARK RIDGE HMC HOTEL LIMITED PARTNERSHIP,
BY: HOST PARK RIDGE LLC
YBG ASSOCIATES LLC,
HMC CHICAGO LLC,
HMC DESERT LLC,
HMC PALM DESERT LLC,
MDSM FINANCE LLC,
HMC DIVERSIFIED LLC,
HMC EAST SIDE II LLC,
HMC GATEWAY LLC,
HMC GRAND LLC,
HMC HANOVER LLC,
HMC HARTFORD LLC,
HMC HOTEL DEVELOPMENT LLC,
HMC HPP LLC,
HMC IHP HOLDING LLC,
HMC MANHATTAN BEACH LLC,
HMC MARKET STREET LLC,
NEW MARKET STREET LP,
BY: HMC MARKET STREET LLC
HMC GEORGIA LLC,
HMC MEXPARK LLC,
HMC POLANCO LLC,
HMC NGL LLC,
HMC OLS I L.P.,
BY: HMC OLS I LLC
HMC OP BN LLC,
HMC PACIFIC GATEWAY LLC,
HMC PLP LLC,
CHESAPEAKE HOTEL LIMITED PARTNERSHIP,
BY: HMC PLP LLC
HMC POTOMAC LLC,
HMC PROPERTIES I LLC,
HMC PROPERTIES II LLC,
HMC RTZ LOAN I LLC,
HMC RTZ II LLC,
HMC SBM TWO LLC,
HMC SEATTLE LLC,
HMC SFO LLC,
HMC SWISS HOLDINGS LLC,
HMC WATERFORD LLC,
HMH GENERAL PARTNER HOLDINGS LLC,
HMH NORFOLK LLC,
HMH NORFOLK, L.P.,
BY: HMH NORFOLK LLC
HMH PENTAGON LLC,
HMH RESTAURANTS LLC,
HMH RIVERS LLC,
HMH RIVERS, L.P.,
BY: HMH RIVERS LLC
HMH WTC LLC,
HMP CAPITAL VENTURES LLC,
HMP FINANCIAL SERVICES LLC,
HOST LA JOLLA LLC,
CITY CENTER HOTEL LIMITED PARTNERSHIP,
BY: HOST LA JOLLA LLC
TIMES SQUARE LLC,
IVY STREET LLC,
MARKET STREET HOST LLC,
MFR OF ILLINOIS LLC,
MFR OF VERMONT LLC,
MFR OF WISCONSIN LLC,
PHILADELPHIA AIRPORT HOTEL LLC,
PM FINANCIAL LLC,
PM FINANCIAL LP,
BY: PM FINANCIAL LLC
HMC PROPERTY LEASING LLC,
HMC HOST RESTAURANTS LLC,
SANTA CLARA HMC LLC,
S.D. HOTELS LLC,
TIMES SQUARE GP LLC,
DURBIN LLC,
HMC HT LLC,
HMC JWDC GP LLC,
HMC JWDC LLC,
HMC OLS I LLC,
HMC OLS II L.P.,
BY: HMC OLS I LLC
HMT LESSEE PARENT, LLC,
HMC/INTERSTATE ONTARIO, L.P.
BY: HMC PARTNERSHIP HOLDINGS LLC
HMC/INTERSTATE MANHATTAN BEACH, L.P.,
BY: HMC MANHATTAN BEACH LLC
HOST/INTERSTATE PARTNERSHIP, L.P.
BY: CITY CENTER INTERSTATE PARTNERSHIP LLC
HMC/INTERSTATE WATERFORD, L.P.
BY: HMC WATERFORD LLC
AMELIATEL,
HMC AMELIA I, LLC
HMC AMELIA II, LLC
ROCKLEDGE HOTEL LLC,
FERNWOOD HOTEL LLC
By:______________________________
Name:
Title:
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above written.
DEUTSCHE BANC ALEX. BROWN INC.
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
SCOTIA CAPITAL (USA) INC.
SG COWEN SECURITIES CORPORATION
BY: DEUTSCHE BANC ALEX. BROWN INC.
By: _________________________
Name:
Title:
By: _________________________
Name:
Title: