Exhibit 1.1
REGISTRATION RIGHTS AGREEMENT
Dated as of August 20, 1997
by and among
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
and
TERRA NOVA (BERMUDA) HOLDINGS LTD.
and
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
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7.2% Senior Notes Due 2007
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of August 20, 1997, by and among Terra Nova Insurance (UK) Holdings PLC,
a company organized under the laws of England and Wales (the "Company"), Terra
Nova (Bermuda) Holdings Ltd., a company organized under the laws of Bermuda (the
"Guarantor"), Donaldson, Lufkin & Jenrette Securities Corporation (the
"Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated August 20,
1997 (the "Purchase Agreement") between the Company, the Guarantor and the
Purchaser which provides for the sale by the Company to the Purchaser of
$75,000,000 aggregate principal amount of the Company's 7.2% Senior Notes Due
2007 (the "Notes"), which are guaranteed by the Guarantor. In order to induce
the Purchaser to enter into the Purchase Agreement and purchase the Notes, the
Company and the Guarantor have agreed to provide the registration rights and
perform the obligations set forth in this Agreement. The execution of this
Agreement is a condition to the purchase of the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
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Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Agreement" has the meaning set forth in the first paragraph of this
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Agreement.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
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that is not a day on which banking institutions in The City of New York or
Hamilton, Bermuda or London, England are authorized or obligated by law,
regulation or executive order to close.
"Commission" means the Securities and Exchange Commission.
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"Company" has the meaning set forth in the first paragraph of this
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Agreement and also includes the Company's successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means 7.2% Senior Notes Due 2007 issued by the Company
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under the Indenture and guaranteed by the Guarantor on the same terms as the
Notes, and containing terms identical to the Notes (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from August 26, 1997, (ii) the Exchange
Notes will not contain restrictions on transfer, and (iii) the Exchange Notes
will not contain provisions relating to an increase in their interest rate under
certain circumstances) to be offered to Holders of Notes pursuant to the
Exchange Offer.
"Exchange Offer" means the exchange offer by the Company of Exchange Notes
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for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" means a registration under the Securities Act
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effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" means an exchange offer
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registration statement on Form F-4 (or, if applicable, on another appropriate
form) pursuant to the provisions of Section 2(a) of this Agreement which covers
all of the Exchange Notes and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference
therein.
"Guarantor" has the meaning set forth in the first paragraph of this
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Agreement and also includes the Guarantor's successors.
"Holder" means the Purchaser, for so long as it owns any Registrable Notes,
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and its successors, assigns and direct and indirect transferees who become
registered owners of Registrable Notes under the Indenture; provided that for
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purposes of Sections 4 and 6 of this Agreement, the term "Holder" shall include
Participating Broker-Dealers as defined in Section 4(a).
"Indenture" means the Indenture relating to the Notes dated as of August
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26, 1997 among the Company, the Guarantor and The Chase Manhattan Bank, N.A., as
Trustee, as amended or supplemented from time to time in accordance with the
terms thereof.
"Notes" has the meaning set forth in the second paragraph of this
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Agreement.
"Person" means an individual, partnership, corporation, limited liability
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company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Purchase Agreement" has the meaning set forth in the first paragraph of
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this Agreement.
"Prospectus" means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses 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 amendment or supplement thereto, with respect to
the offering of any portion of the Registrable Notes covered by such
Registration Statement or of the Exchange Notes, as the case may be, 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 therein.
"Purchaser" has the meaning set forth in the first paragraph of this
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Agreement.
"Registrable Notes" means the Notes; provided that any Note shall cease to
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be a Registrable Note upon the earlier to occur of (i) when a Registration
Statement with respect to such Note has been declared effective under the
Securities Act and such Note has been disposed of pursuant to such Registration
Statement, (ii) when such Note has become eligible for resale pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act, (iii) except with respect to any Note held by a Holder described
in clause (iii) of Section 2(b) hereof, an Exchange Offer has been consummated,
or (iv) such Notes shall cease to be outstanding.
"Registration Expenses" has the meaning set forth in Section 5 hereof.
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"Registration Statement" means any registration statement that covers any
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of the Exchange Notes or Registrable Notes pursuant to the provisions of this
Agreement and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference or deemed to be incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated by the Commission thereunder.
"Shelf Registration" means a registration under the Securities Act effected
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pursuant to Section 2(b) hereof.
"Shelf Registration Statement" means a "shelf" registration statement on
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Form S-3 (or, if applicable, on another appropriate form) pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the Registrable
Notes (except Registrable Notes that the Holders have elected not to include in
such Shelf Registration Statement) under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the Commission, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference or deemed to be incorporated by
reference therein.
"Special Counsel" means Davis Polk & Wardwell, special counsel to the
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Purchaser or such other special counsel as may be designated by the Holders of a
majority in aggregate principal amount of Registrable Notes outstanding.
"Trustee" means the trustee with respect to the Notes under the Indenture.
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2. Registration under the Securities Act
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(a) Exchange Offer Registration. To the extent not prohibited by any
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applicable law or applicable interpretation of the Staff of the Commission, each
of the Company and the Guarantor agree to use its commercially reasonable
efforts to cause to be filed after the Closing Date an Exchange Offer
Registration Statement covering an offer by the Company to the Holders to
exchange all of the Registrable Notes (except Registrable Notes held by the
Purchaser and acquired directly from the Company if the Purchaser is not
permitted, pursuant to applicable law or any applicable interpretation of the
Staff of the Commission, to participate in the Exchange Offer) for Exchange
Notes and to have such Registration Statement remain effective until the closing
of the Exchange Offer. The Company shall commence the Exchange Offer promptly
after the Exchange Offer Registration Statement has been declared effective by
the Commission and use its commercially reasonable efforts to have the Exchange
Offer consummated not later than February 26, 1998. The Company shall commence
the Exchange Offer by mailing the related exchange offer Prospectus and
accompanying documents to each Holder stating, in addition to such other
disclosures required by applicable law or the Indenture:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Registrable Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which shall be a period of
not less than 20 Business Days from the date such notice is first mailed)
(the "Exchange Dates");
(iii) that any Registrable Note entitled to be exchanged in the
Exchange Offer not tendered or tendered and validly withdrawn will remain
outstanding and continue to accrue interest (but not at any increased rate
provided for under certain circumstances in such Notes), but will not
retain any rights under this Agreement;
(iv) that each Holder electing to have a Registrable Note exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with letters of transmittal, to the institution
and at the address (located in the Borough of Manhattan, The City of New
York) specified in the notice prior to the close of business on the last
Exchange Date; and
(v) that each Holder will be entitled to withdraw its election not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Notes delivered for exchange and a statement that
such Holder is withdrawing its election to have such Registrable Notes
exchanged.
As soon as practicable after the last Exchange Date, the Company shall:
(i) accept for exchange Registrable Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, Exchange Notes equal in principal
amount to the principal amount of the Registrable Notes surrendered by such
Holder.
The Company shall use its commercially reasonable efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any
conditions, other than that the Exchange Offer does not violate applicable law
or any applicable interpretation of the Staff of the Commission.
(b) Shelf Registrations. In the event that (i) the Company determines
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that the Exchange Offer Registration provided in Section 2(a) above is not
available or may not be consummated as soon as practicable after the last
Exchange Date, (ii) the Exchange Offer is not for any other reason consummated
by February 26, 1998 or (iii) the Exchange Offer has been completed, and within
60 days following the consummation of the Exchange Offer, a Holder notifies the
Company that in the opinion of Special Counsel a Registration Statement must be
filed and a Prospectus must be delivered by it because (x) such Registrable
Notes represent an unsold allotment of the Registrable Notes purchased by the
Purchaser from the Company, (y) such Holder is a Participating Broker-Dealer, or
(z) such Holder was otherwise not permitted to participate in the Exchange
Offer, unless the Company has previously done so, the Company shall use its
commercially reasonable efforts to cause to be filed as soon as practicable
after such determination, date or notice of such Special Counsel's opinion is
given to the Company, as the case may be, a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Notes and to
have such Shelf Registration Statement declared effective by the Commission. The
Company shall use its commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective for a period of three years from
the Closing Date or such shorter period which will terminate when all the
Registrable Notes covered by the Shelf Registration have been sold pursuant to
the Shelf Registration Statement. The Company shall also supplement or amend
such Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company or if
required by the Securities Act or by any other rules and regulations thereunder
for shelf registration or if reasonably requested by a Holder with respect to
information relating to such Holder, and to use its commercially reasonable
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter practicable. The
Company agrees to furnish to the Holders of Registrable Notes copies of any such
supplement or amendment promptly after its being used or filed with the
Commission.
(c) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the Commission; provided that, if, after it has been declared effective, the
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offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to such
Registration
Statement may legally resume. In the event that either the Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective on or
prior to February 26, 1998, then the annual interest rate borne by the Notes
shall be increased by 0.25% beginning at such time. If either such Exchange
Offer is not consummated or such Shelf Registration Statement is not declared
effective on or prior to May 26, 1998, then the annual interest rate borne by
the Notes shall be increased by an additional 0.25% beginning at such time. Upon
consummation of such Exchange Offer or the effectiveness of such Shelf
Registration Statement, the interest borne by the Notes will revert to the
original rate.
(d) Without limiting the remedies available to the Purchaser and the
Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Purchaser or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2(a) and 2(b)
hereof.
(e) The Guarantor hereby agrees to cause the Company to perform all of its
obligations under this Section 2.
3. Registration Procedures
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(a) In connection with the obligations of the Company and the Guarantor
pursuant to Sections 2(a), 2(b) and 2(d) hereof, the Company shall, and the
Guarantor shall take all action necessary to enable the Company and shall cause
the Company to:
(i) prepare and file with the Commission, within the applicable time
period specified in Section 2(a) and Section 2(b), a Registration Statement
or Registration Statements on the appropriate form under the Securities
Act, which form (A) shall be selected by the Company and (B) shall, in the
case of a Shelf Registration Statement, be available for the sale of the
Registrable Notes in accordance with the intended method or methods of
distribution as the Company is so advised of by the selling Holders thereof
and (C) shall comply as to form in all material respects with the
requirements of the applicable form and include (including through
incorporation by reference) all financial statements required by the
Commission to be filed therewith, and the Company shall use its
commercially reasonable efforts to cause each such Registration Statement
to become effective and remain effective in accordance with Section 2
hereof;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period and cause each 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
to keep each Prospectus current during the period described under Section
4(3) and Rule 174 under the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable Notes or
Exchange Notes;
(iii) a reasonable time prior to the filing of any Registration
Statement or Prospectus or any amendments or supplements thereto or any
document which is to be incorporated or deemed to be incorporated therein
by reference and amendments to such documents, provide copies of such
document to the Holders and the Special Counsel and shall not at any time
file or make any amendment to the Registration Statement, any Prospectus or
any amendment of or supplement to a Registration Statement or a Prospectus
or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the Holders and the
Special Counsel shall not have previously been advised and furnished a copy
or to which the Holders or the Special Counsel shall reasonably object;
(iv) use its commercially reasonable efforts to register or qualify
the Exchange Notes or Registrable Notes for the exchange or offer and sale,
as the case may be, under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder covered by a Registration
Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the Commission, keep each
such registration or qualification effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts and things which may be necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of such
Registrable Notes or Exchange Notes owned by such Holder; provided that the
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Company will not be required to (A) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(a)(iii), (B) take any action
which would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) take any action which
would subject it to taxation in any such jurisdiction where it is not then
so subject;
(v) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement and provide prompt notice to each Holder and the Special Counsel
of the withdrawal of any such order;
(vi) use its commercially reasonable efforts to obtain the consent
or approval of each United States governmental agency or authority, whether
federal, state or local, required to be obtained by the Company as may be
necessary to enable the Holders thereof to consummate the disposition of
such Registrable Notes or Exchange Notes and cooperate with each seller of
Registrable Notes in connection with any filings required to be made by
such seller with the National Association of Securities Dealers, Inc.;
(vii) provide a trustee for the Registrable Notes or Exchange Notes,
as the case may be, and cause the Indenture (or the indenture governing the
Exchange Notes, if any) to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA") not later than the effective date of any
registration; and in connection therewith, cooperate with the Trustee and
the Holders 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 commercially reasonable efforts to cause the
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
Commission to enable such indenture to be so qualified in a timely manner;
(viii) comply with all applicable rules and regulations of the
Commission and, in the case of a Shelf Registration, make generally
available to its security holders an earning statement satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year), commencing on the first
day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement, which statement shall cover
said 12-month period;
(ix) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement; and
(x) use its commercially reasonable efforts to cause the Exchange
Notes or Registrable Notes, as the case may be, to be rated by a nationally
recognized statistical rating organization (as such term is defined in Rule
436(g)(2) under the Securities Act) unless such Notes are already so rated.
(b) In addition to the obligations set forth above in Section 3(a), in the
case of a Shelf Registration pursuant to Section 2(b) hereof, as expeditiously
as possible, the Company and the Guarantor shall:
(i) notify each Holder of Registrable Notes and the Special Counsel
promptly, and (if requested by any such Person) confirm such notice in
writing, (A) when a Prospectus, any Prospectus supplement, a Registration
Statement or post-effective amendment related to such Registrable Notes has
been filed, and, with respect to a Registration Statement or any post-
effective amendment related to such Registrable Notes, when the same has
become effective, (B) of any request by the Commission or any federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(C) of the issuance by the Commission or any federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (D) if, between the effective date of a Registration Statement and
the closing of any sale of Registrable Notes covered thereby, the
representations and warranties of the Company or the Guarantor contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in
all material respects, (E) of the receipt by the Company or the Guarantor
of any notification with respect to the suspension of the qualification of
any of the Registrable Notes for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, (F) of the existence of
any fact or happening of any event during the period a Shelf Registration
Statement is effective which 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
which requires the making of any changes in a Registration Statement or
related Prospectus in order 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 the light of the circumstances under
which they were made, not misleading, and (G) of the
Company's or the Guarantor's determination that a post-effective amendment
to a Registration Statement would be appropriate;
(ii) if reasonably requested by any Holder of Registrable Notes
covered by a Registration Statement, (A) incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as such Holder reasonably requests to be included therein, (B)
make all required filings of such Prospectus supplement or such post-
effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such filings and (C)
supplement or make amendments to any Registration Statement if reasonably
requested by any Holder of Registrable Notes covered by such Registration
Statement;
(iii) furnish to each Holder of Registrable Notes and the Special
Counsel and to each underwriter of an underwritten offering of Registrable
Notes, if any, without charge, at least one conformed copy of each
Registration Statement or Statements and any amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference or deemed incorporated therein by reference and all exhibits
(including those previously furnished or incorporated by reference), as
soon as practicable after the filing of such documents with the Commission;
(iv) furnish to each Holder of Registrable Notes, the Special Counsel
and to each underwriter of an underwritten offering of Registrable Notes,
if any, without charge, as many copies of each Prospectus or Prospectuses
(including each preliminary Prospectus) and any amendment or supplement
thereto and such other documents as such Persons may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Notes; and each of the Company and the Guarantor hereby consents to the use
of such Prospectus or any amendment or supplement thereto in accordance
with applicable law by each of the selling Holders of Registrable Notes and
any such underwriter in connection with the offering and sale of the
Registrable Notes covered by and in the manner described in such Prospectus
or any amendment or supplement thereto in accordance with applicable law;
(v) cooperate with the selling Holders of Registrable Notes to
facilitate the timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends; and enable such Registrable Notes to be in such
denominations and registered in such names, in all cases consistent with
the requirements set forth in the Indenture, as the
Holders may request at least two Business Days prior to the closing of any
sale of Registrable Notes;
(vi) a reasonable time prior to the filing of any Registration
Statement or Prospectus or any amendments or supplements thereto or any
document which is to be incorporated or deemed to be incorporated therein
by reference and amendments to such documents, make such of the
representatives of the Company and the Guarantor as shall be reasonably
requested by the Holders or the Special Counsel available for discussion of
such document;
(vii) upon becoming aware of the occurrence of any event contemplated
by paragraph 3(b)(i)(F) or 3(b)(i)(G) above, use its commercially
reasonable efforts to, as promptly as practicable thereafter, prepare and
file with the Commission a post-effective amendment to the applicable
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into the Registration
Statement so that the Registration Statement shall not contain any untrue
statement or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and so that the
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 the light of the circumstances under which they
were made, not misleading, as thereafter delivered to the purchasers of the
Registrable Notes being sold thereunder, and, in the case of a post-
effective amendment to a Registration Statement, use its commercially
reasonable efforts to cause it to become effective as promptly as is
practicable. Each of the Company and the Guarantor agrees to notify the
Holders and the Special Counsel to suspend use of the Prospectus as
promptly as practicable after becoming aware of the occurrence of such an
event, and the Holders hereby agree to suspend use of the Prospectus upon
receipt of such notice until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(viii) enter into such customary agreements and take all such other
customary actions in connection therewith (including those reasonably
requested by the Holders of a majority of the Registrable Notes being sold)
as are reasonably required to expedite or facilitate the disposition of
such Registrable Notes including, but not limited to, an underwritten
offering and in connection therewith, (A) to the extent practicable, make
such representations and warranties to the Holders and any underwriters of
such Registrable Notes with respect to the business of the Guarantor and
its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated
by reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (B) obtain opinions of counsel to
the Company and the Guarantor satisfactory to the selling Holders and any
underwriters of such Registrable Notes and updates thereof addressed to
each selling Holder and underwriter of Registrable Notes, covering the
matters customarily covered in opinions requested in underwritten
offerings, (C) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and the Guarantor
(and, if necessary, any other certified public accountant of any subsidiary
of the Guarantor, or of any business acquired or to be acquired by the
Company or the Guarantor for which financial statements and financial data
is or is required to be included in the Registration Statement) addressed
to each selling Holder and underwriter of Registrable Notes, 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 (D) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in principal amount of the
Registrable Notes being sold and the Special Counsel to evidence the
continued validity of the representations and warranties of the Company and
the Guarantor made pursuant to clause (A) above and to evidence compliance
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company or the Guarantor. The above
shall be done at each closing under such underwriting or similar agreement
as and to the extent required thereunder;
(ix) upon reasonable notice, make available for inspection by a
representative of the Holders of Registrable Notes, Special Counsel, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney and accountant designated by such
selling Holders or underwriters, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and properties
of the Guarantor and its subsidiaries and cause the officers, directors and
employees of the Guarantor and its subsidiaries to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such disposition, in each case that would
customarily be reviewed or examined in connection with a "due diligence"
review of the Company and the Guarantor; and
(x) use its commercially reasonable efforts to cause all Registrable
Notes to be listed on any securities exchange or any automated quotation
system on which similar securities issued by the Company are then listed if
requested by
the Holders of a majority in aggregate principal amount, to the extent such
Registrable Notes satisfy applicable listing requirements.
In the case of a Shelf Registration Statement, the Company may require each
Holder of Registrable Notes to furnish to the Company such information regarding
the Holder and the distribution of such Registrable Notes by such Holder as the
Company may from time to time reasonably request in writing. Each Holder of
Registrable Notes as to which any registration is being effected will be
required to notify the Company as promptly as practicable of any inaccuracy or
change in information previously furnished by such Holder to the Company
pursuant to Section 2 or of the happening of any event, in either case as a
result of which any Prospectus relating to such registration contains an untrue
statement of a material fact regarding such Holder or the distribution of such
Registrable Notes required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and to furnish to the Company promptly any additional
information required to correct and update any previously furnished information
or required such that such Prospectus shall not contain, with respect to such
Holder or the distribution of such Registrable Notes, an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any (i) notice from the Company or the Guarantor of the
happening of any event of the kind described in Section 3(b)(i)(F) or 3(b)(i)(G)
hereof, (ii) notice from the Company or the Guarantor that it is in possession
of material information that has not been disclosed to the public and the
Company or the Guarantor reasonably deems it to be advisable not to disclose
such information in a registration statement or (iii) notice from the Company or
the Guarantor that it is in the process of a registered offering of securities
and the Company or the Guarantor reasonably deems it to be advisable to
temporarily discontinue disposition of Registrable Notes pursuant to the Shelf
Registration Statement (in each case, such notice being hereinafter referred to
as a "Suspension Notice"), such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to any Shelf Registration Statement and shall not be
entitled to the benefits provided under Section 6 hereof with respect to any
sales made by it in contravention of this paragraph, until such Holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by Section
3(b)(vii) hereof or a notice that any order suspending the effectiveness of the
Shelf Registration Statement has been withdrawn, or, in the case of (ii) or
(iii) above, until further notice from the Company and the Guarantor that
disposition of Registrable Notes may resume, provided that such further notice
will be given within 90 days of the Suspension Notice in the case
of (ii) above and within 120 days of the Suspension Notice in the case of (iii)
above, and provided further that in the case of (ii) and (iii) above that any
Suspension Notice must be based upon a good faith determination of the Board of
Directors of the Company or the Guarantor that such Suspension Notice is
necessary; and, if so directed by the Company or the Guarantor, such Holder will
deliver to the Company (at the expense of the Company) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Notes current at the time of receipt
of such notice. If the Company or the Guarantor shall give any Suspension Notice
relating to the disposition of Registrable Notes pursuant to any Shelf
Registration Statement, the Company shall extend the period during which such
Shelf Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such Notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions or received such Notice that any order suspending dispositions
of the Notes has been withdrawn. Notwithstanding the foregoing, in the case of
clauses (ii) or (iii) above, neither the Company nor the Guarantor may deliver a
Suspension Notice if a period of 90 days in the case of (ii) above and 120 days
in the case of (iii) above has not elapsed since the termination of any prior
period during which a Suspension Notice was in effect.
4. Participation of Broker-Dealers in Exchange Offer
-------------------------------------------------
(a) The Staff of the Commission has taken the position that any broker-
dealer that receives Exchange Notes for its own account in the Exchange Offer in
exchange for Notes that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer"), may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes.
Each of Company and the Guarantor understands that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Notes, without naming the Participating Broker-Dealers or specifying
the amount of Exchange Notes owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Notes for their
own accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In the light of the above, notwithstanding the other provisions of
this Agreement, each of the Company and the Guarantor agrees that the provisions
of this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Purchaser or by one
or more Participating Broker-Dealers, in each case as provided in clause (ii)
below, in order to expedite or facilitate the disposition of any Exchange Notes
by Participating Broker-Dealers consistent with the positions of the Staff of
the Commission recited in Section 4(a) above; provided that:
--------
(i) neither the Company nor the Guarantor shall be required to amend
or supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(b)(vii), for a
period exceeding 180 days after the last Exchange Date (as such period may
be extended pursuant to the last paragraph of Section 3 of this Agreement)
and Participating Broker-Dealers shall not be authorized by the Company or
the Guarantor to deliver and shall not deliver such Prospectus after such
period in connection with resales contemplated by this Section 4; and
(ii) in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration, the
Company and the Guarantor shall be obligated (A) to deal only with one
entity representing the Participating Broker-Dealers, which shall be
Donaldson, Lufkin & Jenrette Securities Corporation unless it elects not to
act as such representative, (B) to pay the fees and expense of only one
counsel representing the Participating Broker-Dealers, which shall be the
Special Counsel unless such counsel elects not to so act and (C) to cause
to be delivered only one, if any, "cold comfort" letter or set of letters,
as the case may be, with respect to the Prospectus in the form existing on
the last Exchange Date and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (i)
above.
5. Registration Expenses
---------------------
The Company shall pay all fees and expenses incident to the performance of
or compliance with this Agreement by the Company including, without limitation,
(i) all Commission, stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualification of any of the Exchange Notes or Registrable Notes), (iii) all
expenses of any Persons acting on behalf of the Company and the Guarantor in
preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the reasonable fees and disbursements of the
Trustee (including the reasonable fees and disbursements of its counsel), (vii)
the fees and disbursements of counsel for the Company and the Guarantor, the
Special Counsel and of the independent public accountants of the Company and the
Guarantor, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding fees of counsel to the underwriters or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Notes by a Holder. In the event the Company shall
fail to pay any amounts owed pursuant to this Section 5, the Guarantor shall pay
such amounts.
6. Indemnification and Contribution
--------------------------------
(a) Each of the Company and the Guarantor jointly and severally agrees to
indemnify and hold harmless (i) the Purchaser, (ii) each Holder, (iii) each
person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) the Purchaser or any Holder (such person
referred to in this clause (ii) as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and agents
of the Purchaser, any Holder or any controlling person (any person referred to
in clause (i), (ii) or (iii) may 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, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, or any amendment or supplement thereto,
any preliminary prospectus or the Prospectus (as amended and supplemented if the
Company or the Guarantor shall have furnished any amendments or supplements
thereto), or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages, liabilities, judgments, actions
or expenses are caused by any such untrue statement or omission or alleged
untrue statement or omission that is made in reliance upon and in conformity
with information relating to the
Purchaser or any Holder, as requested in writing to be included by any Holder
pursuant to Section 2, furnished in writing to the Company by the Purchaser or
any Holder expressly for use therein. The Company and the Guarantor also agree,
jointly and severally, to indemnify any underwriters of the Registrable Notes,
their officers and directors and each Person who controls such underwriters on
substantially the same basis as that of the indemnification of the Purchaser and
the Holders provided in this Section 6. The Company and the Guarantor shall
notify the Purchaser promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation
relating to the offering of the Senior Notes or this Agreement which involves
the Company or the Guarantor or any Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Indemnified Person based
upon any Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended and supplemented if the Company or the
Guarantor shall have furnished any amendments or supplements thereto), and with
respect to which indemnity may be sought against either the Company or the
Guarantor (each, an "Indemnifying Party"), such Indemnified Person shall
promptly notify the Indemnifying Party in writing (provided, that the failure to
give such notice shall not relieve the Indemnifying Party of its obligations
pursuant to this Agreement unless the Indemnifying Party is materially
prejudiced thereby and had no knowledge of such action or proceeding) and such
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses. Such Indemnified Person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Indemnifying Party, (ii) the
Indemnifying Party shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and the Indemnifying Party and such
Indemnified Person shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party or to another Indemnified Party (in
which case the Indemnifying Party shall not have the right to assume the defense
of such action on behalf of such Indemnified Person, it being understood,
however, that the Indemnifying Party 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 (i) one separate firm of attorneys
(in addition to any local counsel) for the Purchaser and all controlling
persons, which firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities
Corporation, and (ii) one separate firm of attorneys (in addition to any local
counsel) for all such Holders and controlling persons, which firm shall be
designated by Holders of a majority in aggregate principal amount of Registrable
Notes, and that all such fees and expenses shall be reimbursed as they are
incurred). Such Indemnifying Party shall be liable for any settlement of any
such action effected with such Indemnifying Party's prior written consent, which
consent shall not be unreasonably withheld, and such Indemnifying Party agrees
to indemnify and hold harmless any Indemnified Person from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of such Indemnifying Party. Notwithstanding
the immediately preceding sentence, if in any case where the fees and expenses
of counsel are at the expense of such Indemnifying Party and the Indemnified
Person shall have requested such Indemnifying Party to reimburse the Indemnified
Person for such fees and expenses of counsel as incurred, such Indemnifying
Party agrees that it shall be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered into more than 30
business days after the receipt by such Indemnifying Party of the aforesaid
request, and (ii) such Indemnifying Party shall have failed to reimburse the
Indemnified Person in accordance with such request for reimbursement prior to
the date of such settlement. Such Indemnifying Party shall not, without the
prior written consent of each Indemnified Person, 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 hereunder (whether or not any
Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Person from all liability arising out of such action, claim, litigation or
proceeding.
(c) In connection with any Shelf Registration in which a Holder is
participating, the Holders agree severally and not jointly, to indemnify and
hold harmless the Purchaser and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and the respective officers, directors, partners, employees,
representatives and agents of the Purchaser and each of the Company and the
Guarantor, its directors, officers and any person controlling such person 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 Company and the
Guarantor to the Purchaser and each Holder set forth in Section 6(a) above, but
only with reference to information relating to such Holder furnished in writing
by or on behalf of such Holder, expressly for use in any Registration Statement
or any amendment thereof, any preliminary prospectus or the Prospectus (as
amended and supplemented if the Company or the Guarantor shall have furnished
any amendments or supplements thereto). In case any action shall be brought
against any of the Company, the Guarantor,
any of their directors, any such officers or any person controlling such person
or the Purchaser, any of its directors or any person controlling the Purchaser
based on any Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended and supplemented if the Company or the
Guarantor shall have furnished any amendments or supplements thereto), and in
respect of which indemnity may be sought against any Holder, such Holder shall
have the rights and duties given to the Company and the Guarantor (except that
if the Company, the Guarantor or the Purchaser shall have assumed the defense
thereof, such Holder shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and expenses
of such counsel shall be at such Holder's expense), and each of the Company, the
Guarantor and the Purchaser, their directors, any such officers and any person
controlling such persons shall have the rights and duties given to the Purchaser
and the Holders, by Section 6(b) hereof.
(d) The Purchaser agrees to indemnify and hold harmless each of the Company
and the Guarantor and any person, if any, controlling (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company
or the Guarantor, and the officers, directors, partners, employees,
representatives and agents of each such person, to the same extent as the
foregoing indemnity from the Company and the Guarantor to each of the
Indemnified Persons, but only with respect to claims and actions based on
information relating to the Purchaser furnished in writing by the Purchaser
expressly for use in any Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended and supplemented if the
Company or the Guarantor shall have furnished any amendments or supplements
thereto). In case any action shall be brought against the Company or the
Guarantor, or any of their directors, officers or persons controlling the
Company or the Guarantor, based on any Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended and
supplemented if the Company or the Guarantor shall have furnished any amendments
or supplements thereto), and in respect of which indemnity may be sought against
the Purchaser, the Purchaser shall have the rights and duties given to the
Company and the Guarantor (except that if the Company or the Guarantor shall
have assumed the defense thereof, the Purchaser shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof,
the fees and expenses of such counsel shall be at the expense of the Purchaser),
and the Company and the Guarantor, their directors, officers and any persons
controlling any such persons shall have the rights and duties given to the
Purchaser, by Section 6(b) hereof.
(e) If the indemnification provided for in this Section 6 is unavailable to
any Indemnified Person in respect of any losses, claims, damages, liabilities,
judgments or expenses referred to herein, then each Indemnifying Party, in lieu
of indemnifying such
any Indemnified Person, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities,
judgments and expenses in such proportion as is appropriate to reflect the
relative fault of the Company and the Guarantor, on the one hand, and the
Purchaser, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative fault of the
Company and the Guarantor, on the one hand, and the Purchaser, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company and the Guarantor
or by the Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantor and the Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 6(d) were determined
by pro rata allocation (even if the Purchaser and the Holders were treated as
one entity) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 6, neither the
Purchaser nor any Holder shall be required to contribute any amount in excess of
the amount by which the total price of the Registrable Notes sold by the
Purchaser or such Holder exceeds the amount of any damages which the Purchaser
or such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective amount of Registrable Notes of such Holder that were
registered pursuant to a Registration Statement and not joint. The remedies
provided for in this Section 6 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or
in equity.
(g) The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Purchaser or any person
controlling the Purchaser, any Holder or any person controlling the Holder, or
the Company, the Guarantor, their officers or directors or any person
controlling any such person, and (iii) the sale or transfer of any Registrable
Notes by any Holder.
7. Selection of Underwriters
-------------------------
The Holders of Registrable Notes covered by the Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an underwritten
offering. In any such underwritten offering, the investment banker or
investment bankers and manager or managers (the "underwriters") that will
administer the offering will be selected by the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes included in such
offering.
8. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Company or the Guarantor of
--------
any of their obligations under this Agreement, each Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Each of the Company and the Guarantor agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees 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. Neither the Company nor the Guarantor has,
--------------------------
as of the date hereof, and shall not, on or after the date of this Agreement,
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the Holders in this Agreement. Each of the Company
and the Guarantor represents and warrants that the rights granted to the Holders
hereunder do not in any way conflict with the rights granted to the holders of
the Company's or the Guarantor's securities under any other agreements.
(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 Company and the Guarantor have obtained the written consent of
Holders of a majority of the then outstanding aggregate principal amount of
Registrable Notes affected by such amendment, modification, supplement, waiver
or departure; provided, however, no amendment, modification or supplement,
-------- -------
waiver or consent with respect to the provisions of Section 6 hereof shall be
effective as against any Holder of Registrable Notes unless
consented to in writing by such Holder. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter which
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and which does not directly or indirectly
affect the rights of other Holders may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Notes being sold by
such Holders; 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 provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier or any courier guaranteeing overnight delivery:
(i) if to a Holder, in accordance with the notice provisions set
forth in the Indenture, with a copy to the Purchaser, initially at their
respective addresses as follows:
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Attention: Jonathan D. Kelly
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d); and
(ii) if to the Company, initially at its address as follows:
Terra Nova Insurance (UK) Holdings plc
Terra Nova House
41-43 Mincing Lane
London EC3R 7SP, Great Britain
Attention: John Riddick
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d); and
(iii) if to the Guarantor, initially at its address as follows:
Terra Nova (Bermuda) Holdings Ltd.
Richmond House
2nd Floor
12 Par-La-Ville Road
Hamilton HM 08, Bermuda
Attention: William O. Bailey
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d); and
(iv) if to Special Counsel, initially at its address as follows:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Richard J. Sandler
and thereafter at such other address, notice of which is given in accordance
with this Section 8(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; two business days after
being deposited in the mail, postage prepaid, if mailed; the next business day
if timely delivered to an air courier guaranteeing overnight delivery; when
answered back, if telexed; and when receipt acknowledged, 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: Third Party Beneficiaries. 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 Registrable Notes. The Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company and/or the Guarantor, on the one hand, and the Purchaser, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they deem such enforcement necessary or advisable to protect their 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 internal laws of the State of New York.
(i) Jurisdiction. Each of the Company and the Guarantor has designated and
------------
appointed CT Corporation System, 1633 Broadway, New York, New York 10019, as its
authorized agent (the "Authorized Agent") upon which process may be served in
any legal suit, action or proceeding (a "Proceeding") based on or arising under
this Agreement, which may be instituted in any state or federal court sitting in
the City of New York by any Holder, and each of the Company and the Guarantor
expressly accepts and irrevocably submits to the jurisdiction of any such court
in respect of any such Proceeding. Such appointment shall be irrevocable unless
and until a successor authorized agent in the City or State of New York
reasonably acceptable to the Holders shall have been appointed by the Company or
the Guarantor, as applicable, such successor shall have accepted such
appointment and written notice thereof shall have been given to the Holders.
Each of the Company and the Guarantor represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to such party (mailed or delivered to such party
at such party's address set forth above) shall be deemed, in every respect,
valid and effective personal service of process upon such party in any such
Proceeding and each of the Company and the Guarantor irrevocably waives all
claim of error by reason of any such service. Each of the Company and the
Guarantor irrevocably waives any objection which it may now or hereafter have to
the laying of venue in any federal or state court sitting in the City of New
York of any Proceeding based on or arising under this Agreement and irrevocably
waives any claim that any such Proceeding in any such court has been brought in
an inconvenient forum. Each of the Company and the Guarantor agrees that a final
judgment in any such Proceeding brought in any such court shall be conclusive
and binding upon it and may be enforced in any court having jurisdiction over
the Company or the Guarantor, as applicable, by a suit upon such judgment.
(j) Payment Currency. Any obligation of the parties to make payments
----------------
hereunder is in U.S. dollars (the "Obligation Currency") and such obligation
shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than the Obligation Currency or any other
realization in such other currency, whether as proceeds of set-off, security,
guarantee, distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result in the receipt by the party which
is to receive such payment of the full amount of the Obligation Currency
expressed to be payable hereunder. The party liable to make such payment agrees
to indemnify the party which is to receive such payment for the amount (if any)
by which such receipt shall fall short of the full amount of the Obligation
Currency expressed to be payable hereunder and the party which is to receive
such payment agrees to pay to the party liable to make such payment the amount
(if any) by which such receipt shall exceed the full amount of the Obligation
Currency, and, in each case, such obligation shall not be affected by judgment
being obtained for any other sums due under this Agreement. The parties agree
that the rate of exchange which shall be used to determine if such tender,
recovery or realization shall result in the receipt by the party which is to
receive such payment of the full amount of the Obligation Currency expressed to
be payable hereunder shall be the noon buying rate in New York City for cable
transfers in such foreign currency as certified for customs purposes by the
Federal Reserve Bank of New York for the business day preceding that on which
the judgment becomes a final judgment or, if such noon buying rate is not
available, the rate of exchange shall be the rate at which in accordance with
normal banking procedures Donaldson, Lufkin & Jenrette Securities Corporation
could purchase United States dollars with such foreign currency on the business
day preceding that on which the judgment becomes a final judgment.
(k) Severability. If any term, provision, covenant or restriction of this
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Agreement is held to be invalid, 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
thereby, and the parties hereto shall use their commercially reasonable 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 which may be hereafter declared
invalid, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a final
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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. Except as provided in the Purchase
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
By:
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Name:
Title:
TERRA NOVA (BERMUDA) HOLDINGS LTD.
By:
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Name:
Title:
DONALDSON LUFKIN & JENRETTE SECURITIES
CORPORATION
By:
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Name:
Title: