Exhibit 4.7
REGISTRATION RIGHTS AGREEMENT
among
CHC HELICOPTER CORPORATION,
COMPANY
CHC HELICOPTER HOLDINGS LIMITED
CHC HELICOPTERS INTERNATIONAL INC.
VIKING HELICOPTERS LIMITED
CANADIAN HELICOPTERS (U.K.) LIMITED
CHC SCOTIA LIMITED
BRINTEL HOLDINGS LIMITED
BRINTEL HELICOPTERS LIMITED
FLIGHT HANDLING LIMITED
BOND HELICOPTER SERVICES LIMITED
NORTH DENES AERODROME LTD.
COURT AIR (PROPRIETARY) LTD.
COURT HELICOPTER SERVICES (PROPRIETARY) LTD.
COURT FLIGHT SAFETY (PROPRIETARY) LTD
CHC HELICOPTERS (AFRICA) (PROPRIETARY) LTD.
LLOYD HELICOPTER SERVICES LIMITED
MANAGEMENT AVIATION LIMITED
LLOYD HELICOPTER SERVICES PTY. LTD.
LLOYD OFFSHORE HELICOPTERS PTY. LTD.
LLOYD BASS STRAIT HELICOPTERS PTY. LTD.
LLOYD HELICOPTERS INTERNATIONAL PTY. LTD.,
in its own capacity and as trustee for
THE AUSTRALIAN HELICOPTERS TRUST
LLOYD HELICOPTERS PTY. LTD.
CHC HELICOPTERS (BARBADOS) LIMITED
CHC LEASING (BARBADOS) LIMITED
CHC CAPITAL (BARBADOS) LIMITED
CHC IRELAND LIMITED
CHC SWEDEN AB
CHC NETHERLANDS BV
SCHREINER LUCHTVAART GROEP BV
CAPITAL AVIATION SERVICES BV
HANDELSMAATSCHAPPIJ SCHREINER & CO. BV
LUCHTVAARTMAATSCHAPPIJ SCHREINER AIRWAYS BV
SCHREINER NORTHSEA HELICOPTERS BV
SCHREINER COMPONENTS BV
MULTIFABS SURVIVAL LIMITED
SCHREINER ONROEREND GOED BV
AVIATION PERSONNEL RECRUITMENT AND MANAGEMENT (APRAM) LIMITED
SCHREINER TCHAD SA
4083423 CANADA INC.
WHIRLY BIRD SERVICES LIMITED
CHC HELICOPTERS (MAURITIUS) LTD
HELIWORLD LEASING, LTD
SUBSIDIARY GUARANTORS
and
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER, SMITH INC.
J.P. MORGAN SECURITIES INC.
SCOTIA CAPITAL (USA) INC.
INITIAL PURCHASERS
Dated: March 22, 2005
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of March
22, 2005 is made and entered into among CHC HELICOPTER CORPORATION (the
"Company"), a corporation incorporated under the federal laws of Canada, each of
CHC HELICOPTER HOLDINGS LIMITED, a corporation incorporated under the federal
laws of Canada, CHC HELICOPTERS INTERNATIONAL INC., a corporation incorporated
under the federal laws of Canada, VIKING HELICOPTERS LIMITED, a corporation
incorporated under the federal laws of Canada, CANADIAN HELICOPTERS (U.K.)
LIMITED, a corporation incorporated under the laws of Scotland, CHC SCOTIA
LIMITED, a corporation incorporated under the laws of England and Wales, BRINTEL
HOLDINGS LIMITED, a corporation incorporated under the laws of Scotland, BRINTEL
HELICOPTERS LIMITED, a corporation incorporated under the laws of Scotland,
FLIGHT HANDLING LIMITED, a corporation incorporated under the laws of Scotland,
BOND HELICOPTER SERVICES LIMITED, a corporation incorporated under the laws of
SCOTLAND, NORTH DENES AERODROME LTD., a corporation incorporated under the laws
of England and Wales, COURT AIR (PROPRIETARY) LTD., a corporation incorporated
under the laws of South Africa, COURT HELICOPTER SERVICES (PROPRIETARY) LIMITED,
a corporation incorporated under the laws of South Africa, COURT FLIGHT SAFETY
(PROPRIETARY) LTD., a corporation incorporated under the federal laws of South
Africa, CHC HELICOPTERS (AFRICA) (PROPRIETARY) LTD., a corporation incorporated
under the federal laws of South Africa, LLOYD HELICOPTER SERVICES LIMITED, a
corporation incorporated under the laws of Scotland, MANAGEMENT AVIATION
LIMITED, a corporation incorporated under the laws of England and Wales, LLOYD
HELICOPTER SERVICES PTY. LTD., a corporation incorporated under the federal laws
of Australia, LLOYD OFFSHORE HELICOPTERS PTY. LTD., a corporation incorporated
under the federal laws of Australia, LLOYD BASS STRAIT HELICOPTERS PTY. LTD., a
corporation incorporated under the federal laws of Australia, LLOYD HELICOPTERS
INTERNATIONAL PTY. LTD. in its own capacity and as trustee of the The Australian
Helicopters Trust, a trust existing under the laws of Australia, a corporation
incorporated under the federal laws of Australia, LLOYD HELICOPTERS PTY. LTD., a
Corporation incorporated
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under the federal laws of Australia, CHC HELICOPTERS (BARBADOS) LIMITED, a
corporation incorporated under the laws of Barbados, CHC CAPITAL (BARBADOS)
LIMITED, a corporation incorporated under the laws of Barbados, CHC LEASING
(BARBADOS) LIMITED, a corporation incorporated under the laws of Barbados, CHC
IRELAND LIMITED, a corporation incorporated under the federal laws of Ireland,
CHC SWEDEN AB, a corporation incorporated under the laws of Sweden, CHC
NETHERLANDS BV, a corporation incorporated under the laws of The Netherlands,
SCHREINER LUCHTVAART GROEP BV, a corporation incorporated under the laws of The
Netherlands, CAPITAL AVIATION SERVICES BV, a corporation incorporated under the
laws of The Netherlands, HANDELSMAATSCHAPPIJ SCHREINER & CO. BV, a corporation
incorporated under the laws of The Netherlands, LUCHTVAARTMAATSCHAPPIJ SCHREINER
AIRWAYS BV, a corporation incorporated under the laws of The Netherlands,
SCHREINER NORTHSEA HELICOPTERS BV, a corporation incorporated under the laws of
The Netherlands, SCHREINER COMPONENTS BV, a corporation incorporated under the
laws of the The Netherlands, MULTIFABS SURVIVAL LIMITED, a corporation
incorporated under the laws of Scotland, SCHREINER ONROEREND GOED BV, a
corporation incorporated under the laws of The Netherlands, AVIATION PERSONNEL
RECRUITMENT AND MANAGEMENT (APRAM) LIMITED, a corporation incorporated under the
laws of Cyprus, SCHREINER TCHAD SA, a corporation incorporated under the laws of
Tchad, 4083423 Canada Inc., a corporation incorporated under the federal laws of
Canada, WHIRLY BIRD SERVICES LIMITED, a corporation incorporated under the laws
of Scotland, CHC HELICOPTERS (MAURITIUS) LTD., a corporation incorporated under
the laws of Mauritius and HELIWORLD LEASING LTD, a company limited by shares
duly organized and existing under the laws of England and Wales (collectively,
the "Subsidiary Guarantors") and MERRILL LYNCH & CO. and MERRILL LYNCH, PIERCE,
FENNER, SMITH INCORPORATED, J.P. MORGAN SECURITIES INC. and SCOTIA CAPITAL (USA)
INC. (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated March
15, 2005 among the Company, the Subsidiary Guarantors and the Initial Purchasers
(the "Purchase Agreement"), which provides for the issue and sale by the Company
to the Initial Purchasers of $150,000,000 aggregate principal amount of the
Company's 7 3/8% Senior Subordinated Notes due 2014 (the "Notes"). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
and the Subsidiary Guarantors have agreed to provide to the Initial Purchasers
and their direct and indirect transferees the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
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"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Canadian Legend" shall mean the portion of the legend relating to
trades to residents of Canada set forth in the Offering Memorandum under
the heading "Notice to Investors."
"Common Depositary" shall mean The Depositary Trust Company, or any
other depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan in the City of
New York.
"Company" shall have the meaning set forth in the preamble of this
Agreement and also includes the Company's successors.
"Exchange Notes" shall mean 7 3/8% Senior Subordinated Notes due 2014
of the Company, issued under the Indenture, containing terms identical to
the Notes and evidencing the same continuing indebtedness of the Company
(except that (a) 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
March 22, 2005 (b) the transfer restrictions thereon shall be eliminated
(except that the Exchange Notes will bear the Canadian Legend until such
time as such legend has been removed pursuant to, or is no longer required
by, the Indenture) and (c) certain provisions relating to an increase in
the stated rate of interest thereon shall be eliminated), to be offered to
Holders of Registrable Notes in exchange for Notes pursuant to the Exchange
Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form F-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Notes, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes
under the Indenture.
"Indenture" shall mean the Indenture relating to the Notes dated as of
April 27, 2004, among the Company, the Subsidiary Guarantors and The Bank
of New York, as trustee, as the same may be amended or supplemented from
time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
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"Inspectors" shall have the meaning set forth in Section 3(o).
"Issue Date" means March 22, 2005.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Notes outstanding; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the
Company or any of its affiliates (as such term is defined in Rule 405 under
the 1933 Act) (other than the Initial Purchasers or subsequent holders of
Registrable Notes if such subsequent holders are deemed to be such
affiliates solely by reason of their holding of such Registrable Notes)
shall be disregarded in determining whether such consent or approval was
given by the Holders of such required percentage or amount.
"Notes" shall have the meaning set forth in the preamble of this
Agreement.
"Offering Memorandum" shall mean the Offering Memorandum dated March
15, 2005 for CHC Helicopter Corporation's offering of 7 3/8% Senior
Subordinated Notes due 2014.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Notes covered by a Shelf Registration Statement,
and by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
of this Agreement.
"Registrable Notes" shall mean the Notes; provided, however, that any
Notes shall cease to be Registrable Notes when (i) a Registration Statement
with respect to such Notes shall have been declared effective under the
1933 Act and such Notes shall have been disposed of pursuant to such
Registration Statement, (ii) such Notes shall have been sold under Rule 144
or shall have become eligible to be sold to the public pursuant to Rule 144
or Rule 144(k) (or any similar provision then in force, but not Rule 144A)
under the 1933 Act, (iii) such Notes shall have ceased to be outstanding or
(iv) such Notes have been exchanged for Exchange Notes upon consummation of
the Exchange Offer.
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Subsidiary Guarantors
with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. ("NASD")
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of one counsel for any underwriters and Holders in connection
with state or blue sky qualification of any of the Exchange Notes or
Registrable Notes), (iii) all filing fees in respect of any issuance of
Exchange Notes by way of private placement to Holders in Canada, (iv) all
expenses of any Persons 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, certificates representing the
Exchange Notes and other documents relating to the performance of and
compliance with this Agreement, (v) all rating agency fees, (vi) all fees
and expenses incurred in connection with the listing, if any, of any of the
Registrable Notes on any securities exchange or exchanges, (vii) the fees
and disbursements of counsel for the Company and the Subsidiary Guarantors
and, in the case of a Shelf Registration Statement, the reasonable fees and
disbursements (including the expenses of preparing and distributing any
underwriting or securities sales agreements) of one counsel for the Holders
(which counsel shall be selected in writing by the Majority Holders),
(viii) the fees and expenses of the independent public accountants of the
Company and the Subsidiary Guarantors, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, (ix) the fees and expenses of the Trustee, and
any escrow agent or custodian, (x) all fees and disbursements relating to
the qualification of the Indenture under applicable securities laws, (xi)
the fees and expenses of a "qualified independent underwriter" as defined
by Conduct Rule 2720 of the NASD, if required by the NASD rules, in
connection with the offering of the Registrable Notes and (xii) in the case
of any underwritten offering, any fees and disbursements of the
underwriters customarily required to be paid by issuers or sellers of
securities and the reasonable fees and expenses of any experts retained by
the Company and the Subsidiary Guarantors in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Subsidiary Guarantors which covers any 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 therein.
"SEC" shall mean the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
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"Shelf Registration Statement" shall mean a shelf registration
statement of the Company and the Subsidiary Guarantors pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the then
Registrable Notes on an appropriate form under Rule 415 under the 1933 Act,
or any similar rule that may be adopted by the SEC, 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 therein.
"Subsidiary Guarantors" shall have the meaning set forth in the
preamble of this Agreement.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. The Company and the Subsidiary
Guarantors shall, at their own expense (i) file with the SEC within 195 days
after the Issue Date an Exchange Offer Registration Statement covering the offer
by the Company to the Holders to exchange all of the Registrable Notes for
Exchange Notes, (ii) use their best efforts to cause such Exchange Offer
Registration Statement to be declared effective by the SEC within 240 days after
the Issue Date, (iii) to cause such Registration Statement to remain effective
until the closing of the Exchange Offer and (iv) to use their best efforts to
consummate the Exchange Offer within 270 days following the Issue Date. The
Exchange Notes will be issued under the Indenture. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers) eligible and electing to
exchange Registrable Notes for Exchange Notes evidencing the same continuing
indebtedness of the Company (assuming that such Holder (i) is not an affiliate
of the Company within the meaning of Rule 405 under the 1933 Act, (ii) acquires
the Exchange Notes in the ordinary course of such Holder's business and (iii)
has no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange Notes) to trade such
Exchange Notes from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States. Notwithstanding anything contained herein, the Company and the
Subsidiary Guarantors shall not be required to make an Exchange Offer in any
province or territory of Canada or to accept Registrable Notes surrendered by
residents of Canada in the Exchange Offer, unless the distribution of Exchange
Notes pursuant to such offer can be effected pursuant to exemptions from the
registration and prospectus requirements of the applicable securities laws of
such province or territory of Canada.
In connection with the Exchange Offer, the Company and the Subsidiary
Guarantors shall:
(i) mail 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 and, in the
case of Holders in Canada, any
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"wrapped" version thereof used in connection with the private
placement of the Exchange Notes in Canada;
(ii) keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) use the services of the Common Depositary for the Exchange
Offer with respect to Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Notes at any
time prior to 5:00 P.M. New York City time, on the last business day
on which the Exchange Offer shall remain open, by sending to the
institution 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
Notes exchanged; and
(v) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange Registrable Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes to each Holder of Registrable Notes equal in principal
amount to the principal amount of the Registrable Notes of such Holder
so accepted for exchange.
Interest will accrue on each Exchange Note exchanged for a Registrable
Note, from the last date on which interest was paid on the Notes surrendered in
exchange therefor. If no interest has been paid on the Notes, such interest will
accrue from March 22, 2005. The Exchange Offer shall not be subject to any
conditions, other than (i) that the Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, and (ii) the due tendering of
Registrable Notes in accordance with the Exchange Offer. Each Holder of
Registrable Notes (other than Participating Broker-Dealers) who wishes to
exchange such Registrable Notes for Exchange Notes in the Exchange Offer shall
represent that (i) it is not an affiliate (as defined in Rule 405 under the 1933
Act) of the Company or any Subsidiary Guarantor or, if it is such an affiliate,
it will comply with the registration and prospectus delivery requirements of the
1933 Act to the extent applicable, (ii) any Exchange Notes to be received by it
will be acquired in the ordinary course of business and (iii) at the time of the
commencement of the Exchange Offer it has no arrangement with any
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Person to participate in the distribution (within the meaning of the 1933 Act)
of the Exchange Notes and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form F-4 or another appropriate form under the 1933 Act
available. The Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Notes in the Exchange Offer.
(b) Shelf Registration. In the event that (i) any changes in law or
the applicable interpretations of the staff of the SEC do not permit the Company
to effect the Exchange Offer as contemplated by Section 2(a) hereof; (ii) if for
any other reason the Exchange Offer is not consummated within 270 days following
the Issue Date; (iii) if any Holder (other than an Initial Purchaser or a
resident of Canada) is not eligible to participate in the Exchange Offer or (iv)
upon the request of any Initial Purchaser (with respect to any Registrable Notes
which it acquired from the Company) following the consummation of the Exchange
Offer if any such Initial Purchaser shall hold Registrable Notes which it
acquired directly from the Company and if such Initial Purchaser is not
permitted, in the opinion of counsel to such Initial Purchaser, pursuant to
applicable law or applicable interpretation of the staff of the SEC to
participate in the Exchange Offer, the Company and the Subsidiary Guarantors
shall, at their own cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Notes by the Holders from time to time in accordance with
the methods of distribution elected by the Majority Holders of
Registrable Notes and set forth in such Shelf Registration Statement,
and use their best efforts to cause such Shelf Registration Statement
to be declared effective by the SEC within 270 days after the Issue
Date (or promptly in the event of a request by an Initial Purchaser
pursuant to clauses (iv) above). In the event that the Company is
required to file a Shelf Registration Statement upon the request of
any Holder (other than an Initial Purchaser or a resident of Canada)
not eligible to participate in the Exchange Offer pursuant to clause
(iii) above or upon the request of any Initial Purchaser pursuant to
clause (iv) above, the Company and the Subsidiary Guarantors shall
file and use their best efforts to have declared effective by the SEC
both an Exchange Offer Registration Statement pursuant to Section 2(a)
with respect to all Registrable Notes and a Shelf Registration
Statement (which may be a Registration Statement combined with the
Exchange Offer Registration Statement) with respect to offers and
sales of Registrable Notes held by such Holder or such Initial
Purchaser after completion of the Exchange Offer;
(B) use their best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the date the Shelf Registration Statement is declared effective
by the SEC (or one year from the date the Shelf Registration Statement
is declared effective if such Shelf Registration Statement is filed
upon the request of any Initial Purchaser pursuant to clause (iv)
above) or such shorter period which will terminate when all of the
Registrable Notes
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covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement; and
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (x) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto comply in all material respects with the 1933 Act
and the rules and regulations thereunder, (y) any Shelf Registration
Statement and any amendment thereto do not, upon effectiveness,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (z) any Prospectus forming part
of any Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), do not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of
the circumstances under which they were made, not misleading.
No Holder of Registrable Notes may include any of its Registrable
Notes in any Shelf Registration pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing such information as the Company may,
after conferring with counsel, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein.
The Company and the Subsidiary Guarantors further agree, if necessary,
to supplement or amend the Shelf Registration Statement if requested by the
Majority Holders of Notes that are Registrable Notes with respect to information
relating to the Holders and otherwise as required by Section 3(b) below, to use
all reasonable efforts to cause any such amendment to become effective and such
Shelf Registration to become usable as soon as thereafter practicable and to
furnish to the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company and the Subsidiary Guarantors shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and 2(b) and, in the case of an Exchange Offer Registration Statement, will
reimburse the Initial Purchasers, for the reasonable fees and disbursements of
one firm or counsel in connection therewith. Each Holder shall pay all expenses
of its counsel other than as set forth in the preceding sentence, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement. The Company and the Subsidiary
Guarantors will be deemed not to have used their best efforts to cause a
Registration Statement to become, or to remain, effective during the requisite
periods set forth herein if they voluntarily take any action that would result
in any such Registration Statement not being declared effective or in the
Holders of Registrable Notes covered thereby not being able to exchange or offer
and sell such Registrable Notes during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company and the
Subsidiary Guarantors in good faith and for valid business reasons (not
including avoidance of the Company and the Subsidiary Guarantors' obligations
hereunder), including a material corporate transaction, so long as the
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Company promptly complies with the requirements of Section 3(k) hereof, if
applicable. 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 SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Registration Statement will be
deemed not to have been effective during the period of such interference, until
the offering of Registrable Notes pursuant to such Registration Statement may
legally resume.
(e) Increase in Interest Rate. In the event that (i) the Exchange
Offer Registration Statement is not filed with the SEC on or prior to the 195th
calendar day after the Issue Date, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 240th calendar day after
the Issue Date, (iii) the Exchange Offer is not consummated on or prior to the
270th calendar day after the Issue Date or, as the case may be, a Shelf
Registration Statement with respect to the Registrable Notes is not declared
effective on or prior to the 270th day after the Issue Date or (iv) the Exchange
Offer Registration Statement or the Shelf Registration Statement is declared
effective but thereafter ceases to be effective or usable within the applicable
period as provided in this Agreement (each such event referred to in clauses (i)
through (iv) above, a "Registration Default"), the Company shall be required to
pay additional interest in cash on each Interest Payment Date (as defined in the
Indenture) in an amount equal to one-quarter of one percent (0.25%) per annum of
the principal amount of the Notes, with respect to the first 90-day period
following such Registration Default. The amount of such additional interest will
increase by an additional one-quarter of one percent (0.25%) per annum for each
subsequent 90-day period until such Registration Default has been cured, up to a
maximum of one percent (1%) per annum. Upon (w) the filing of the Exchange Offer
Registration Statement after the 195-day period described in clause (i) above,
(x) the effectiveness of the Exchange Offer Registration Statement after the
240-day period described in clause (ii) above, (y) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement after the
270-day period described in clause (iii) above, or (z) the cure of any
Registration Default described in clause (iv) above, such additional interest
shall cease to accrue on the Notes from the date of such filing, effectiveness,
consummation or cure, as the case may be, if the Company is otherwise in
compliance with this paragraph; provided, however, that if, after any such
additional interest ceases to accrue, a different event specified in clause (i),
(ii), (iii) or (iv) above occurs, such additional interest shall begin to accrue
again pursuant to the foregoing provisions.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company and the Subsidiary
Guarantors acknowledge that any failure by the Company and the Subsidiary
Guarantors to comply with their obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company's and the Subsidiary
Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
11
3. Registration Procedures. In connection with the obligations of the
Company and the Subsidiary Guarantors with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company and the
Subsidiary Guarantors shall:
(a) prepare and file with the SEC a Registration Statement, within the
time period specified in Section 2, on the appropriate form under the 1933
Act, which form (i) shall be selected by the Company and the Subsidiary
Guarantors, (ii) shall, in the case of a Shelf Registration, be available
for the sale of the Registrable Notes by the selling Holders thereof and
(iii) shall comply as to form in all material respects with the
requirements of the applicable form required by the SEC and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith, and use their best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and comply with the provisions of the 1933 Act with
respect to the disposition of all Notes covered by each Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least five days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Notes is being filed
and advising such Holders that the distribution of Registrable Notes will
be made in accordance with the method elected by the Majority Holders of
Notes that are Registrable Notes; and (ii) furnish to each Holder of
Registrable Notes, to counsel for the Initial Purchasers, to counsel for
the Holders and to each underwriter of an underwritten offering of
Registrable Notes, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter
may reasonably request, including financial statements and schedules and,
if the Holder so requests, all exhibits (including those incorporated by
reference) in order to facilitate the public sale or other disposition of
the Registrable Notes; and (iii) subject to the last paragraph of this
Section 3, hereby consent to the use of the Prospectus, including each
preliminary Prospectus, or any amendment or supplement thereto by each of
the selling Holders of Registrable Notes in connection with the offering
and sale of the Registrable Notes covered by the Prospectus or any
amendment or supplement thereto;
(d) use its best efforts to register or qualify the Registrable Notes
under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Notes covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Notes shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, comply with any requirements
under applicable Canadian securities laws in connection with the private
placement of Exchange Notes in Canada, cooperate with the Holders in
connection with
12
any filings required to be made with the NASD, keep each such registration
or qualification effective during the period such Registration Statement is
required to be effective and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Notes owned
by such Holder; provided, however, that the Company shall not be required
to (i) qualify as a foreign corporation or as a broker or dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Notes and counsel for such Holders promptly and, if requested
by such Holder or counsel, confirm such advice in writing promptly (i) when
a Shelf Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of
any request by the SEC or any state securities authority for post-effective
amendments and supplements to a Shelf Registration Statement and Prospectus
or for additional information after the Shelf Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) 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 any Subsidiary Guarantor contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and correct
in all material respects, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the happening of
any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such Shelf
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the Exchange
Offer Registration Statement a "Plan of Distribution" section covering the
use of the Prospectus included in the Exchange Offer Registration Statement
by broker-dealers who have exchanged their Registrable Notes for Exchange
Notes for the resale of such Exchange Notes, (ii) furnish to each
broker-dealer who desires to participate in the Exchange Offer, without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such broker-dealer may reasonably
request, (iii) include in the Exchange Offer Registration Statement a
statement that any broker-dealer which holds Registrable Notes acquired for
its own account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Notes for Registrable Notes pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a Prospectus meeting the
requirements of the 1933 Act in
13
connection with any resale of such Exchange Notes, (iv) subject to the last
paragraph of this Section 3, hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment
or supplement thereto, by any broker-dealer in connection with the sale or
transfer of the Exchange Notes covered by the Prospectus or any amendment
or supplement thereto and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer (x) the following provision:
"If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for
Registrable Notes, it represents that the Registrable Notes to be
exchanged for Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges
that it will deliver a prospectus meeting the requirements of the 1933
Act in connection with any resale of such Exchange Notes pursuant to
the Exchange Offer; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act.";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
1933 Act; and
(B) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Company and the Subsidiary Guarantors shall use their
reasonable best efforts to cause to be delivered at the request of an
entity representing the Participating Broker-Dealers (which entity shall be
one of the Initial Purchasers, unless it elects not to act as such
representative) only one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last date for which exchanges are
accepted pursuant to the Exchange Offer and with respect to each subsequent
amendment or supplement, if any, effected during the period specified in
clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Company and the Subsidiary Guarantors shall use their
best efforts to maintain the effectiveness of the Exchange Offer
Registration Statement for a period of 180 days following the closing of
the Exchange Offer; and
(D) the Company and the Subsidiary Guarantors shall not be required to
amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement as would otherwise be contemplated by Section 3(b)
hereof, or take any other action as a result of this Section 3(f), for a
period exceeding 180 days after the last date for which exchanges are
accepted pursuant to the Exchange Offer (as such period may be extended by
the Company) and Participating Broker-Dealers shall not be authorized by
14
the Company to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (A) in the case of an Exchange Offer or Shelf Registration
Statement, furnish counsel for the Initial Purchasers and (B) in the case
of a Shelf Registration, furnish counsel for the Holders of Registrable
Notes copies of any request by the SEC or any state securities authority
for amendments or supplements to a Registration Statement and Prospectus or
for additional information;
(h) use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends other than the Canadian Legend, as may be
required under applicable Canadian securities laws; and cause such
Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) in a form eligible for deposit with the Common
Depositary and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least one business day
prior to the closing of any sale of Registrable Notes;
(k) in the case of a Shelf Registration, promptly upon the occurrence
of any event or the discovery of any facts, each as contemplated by Section
3(e)(vi) hereof, use their best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Notes, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request;
15
(l) obtain ISIN numbers for all Exchange Notes, or Registrable Notes,
as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the
Exchange Notes or the Registrable Notes, as the case may be, in a form
eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration of
the Exchange Notes, or Registrable Notes, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use their
reasonable best 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 SEC to enable the Indenture to be so
qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the Majority
Holders of Registrable Notes) in order to expedite or facilitate the
disposition of such Registrable Notes and in such connection whether or not
an underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Notes and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings as may be reasonably requested by
them;
(ii) obtain opinions of counsel to the Company and its
subsidiaries and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in principal
amount of the Registrable Notes being sold) addressed to each selling
Holder and the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by
such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's and the Subsidiary Guarantors' independent certified public
accountants addressed to the underwriters, if any, and use best
efforts to have such letters addressed to the selling Holders of
Registrable Notes, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Notes, which agreement shall be in
form, substance and scope customary for similar offerings;
16
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth
in Section 5 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar agreement as and to the
extent required thereunder. In the case of any underwritten offering, the
Company shall provide written notice to the Holders of all Registrable
Notes of such underwritten offering at least 30 days prior to the filing of
a prospectus supplement for such underwritten offering. Such notice shall
(x) offer each such Holder the right to participate in such underwritten
offering, (y) specify a date, which shall be no earlier than 10 calendar
days following the date of such notice, by which such Holder must inform
the Company of its intent to participate in such underwritten offering and
(z) include the instructions such Holder must follow in order to
participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available for inspection
by representatives of the Holders of the Registrable Notes and any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company
and the Subsidiary Guarantors reasonably requested by any such persons, and
cause the respective officers, directors, employees, and any other agents
of the Company and the Subsidiary Guarantors to supply all information
reasonably requested by any such representative, underwriter, counsel or
accountant in connection with such Registration Statement. Any such records
or information that the Company or the Subsidiary Guarantors determines, in
good faith, to be confidential shall not be disclosed by the Inspectors to
any other Person unless (i) such disclosure is necessary to avoid or
correct a material misstatement or omission in a Shelf Registration
Statement, (ii) such disclosure is necessary in connection with the
Inspectors' assertion of any claims or actions or with their establishment
of any defense in an action then pending before a court of competent
jurisdiction, (iii) such disclosure is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or (iv) the information
in such records or information has been made generally available to the
public;
(p) (i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to a Prospectus, provide copies of such document to the Initial
Purchasers, and make such changes in any such document prior to the filing
thereof as any of the Initial Purchasers or their counsel may reasonably
request; (ii) in the case of a Shelf Registration, a reasonable time prior
to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such
17
Shelf Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Holders of Registrable Notes, to the
Initial Purchasers, to counsel on behalf of the Holders and to the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any, and make such changes in any such document prior to the
filing thereof as the Holders of Registrable Notes, the Initial Purchasers
on behalf of such Holders, their counsel and any underwriter may reasonably
request; and (iii) cause the representatives of the Company and its
subsidiaries to be available for discussion of such document as shall be
reasonably requested by the Holders of Registrable Notes, the Initial
Purchasers on behalf of such Holders or any underwriter and shall not at
any time make any filing of any such document of which such Holders, the
Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall not have previously been advised and furnished a copy or
to which such Holders, the Initial Purchasers on behalf of such Holders,
their counsel or any underwriter shall reasonably object;
(q) in the case of a Shelf Registration, use their best efforts to
cause all Registrable Notes to be listed on any securities exchange on
which similar debt securities issued by the Company are then listed if
requested by the Majority Holders of Registrable Notes or by the
underwriter or underwriters of an underwritten offering of such Registrable
Notes, if any;
(r) in the case of a Shelf Registration, use their best efforts to
cause the Registrable Notes to be rated with the appropriate rating
agencies, if so requested by the Majority Holders of Registrable Notes or
by the underwriter or underwriters of an underwritten offering of
Registrable Notes, if any, unless the Registrable Notes are already so
rated;
(s) otherwise use their best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which shall satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel (including, any "qualified independent
underwriter" that is required to be retained in accordance with the rules
and regulations of the NASD).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Notes to furnish to the Company such information regarding
such Holder and the proposed distribution by such Holder of such Registrable
Notes as the Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to a Registration Statement until such
18
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) 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 shall give any such notice to suspend the
disposition of Registrable Notes pursuant to a Shelf Registration Statement as a
result of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(vi) hereof, the Company and the Subsidiary
Guarantors shall be deemed to have used their best efforts to keep the Shelf
Registration Statement effective during such period of suspension provided that
the Company and the Subsidiary Guarantors shall use their best efforts to file
and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Shelf Registration Statement and shall extend the
period during which the 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.
4. Underwritten Registrations. If any of the Registrable Notes covered
by any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority Holders of such Registrable Notes
included in such offering and shall be reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes 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.
5. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Initial
Purchaser, each Holder, including Participating Broker-Dealers, each underwriter
who participates in an offering of Registrable Notes, their respective
Affiliates, and the respective directors, officers, employees, agents and each
Person, if any, who controls any of such parties within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which
Exchange Notes or Registrable Notes were registered under the 1933
Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement
19
thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 5(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of one counsel chosen
by any indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any court or governmental agency or body, commenced or
threatened in connection with, or any claim whatsoever based upon, any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information (i) furnished to the Company by the Initial
Purchasers, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) or (ii)
contained in any preliminary prospectus if the Initial Purchaser, such Holder,
such Participating Broker-Dealer or such underwriter failed to send or deliver a
copy of the final Prospectus (in the form it was first provided to such parties
for confirmation of sales or as amended or supplemented pursuant to Section 3(i)
prior to confirmation of sales) to the Person asserting such losses, claims,
damages or liabilities on or prior to the delivery of written confirmation of
any sale of securities covered thereby to such Person in any case where such
delivery is required by the Securities Act and the Company and the Subsidiary
Guarantors shall have previously furnished copies thereof to such Initial
Purchaser, such Holder, such Participating Broker-Dealer or such underwriter, as
the case may be, in accordance with this Agreement, at or prior to the written
confirmation of the sale of such Securities to such Person and the untrue
statement contained in or the omission from the preliminary Prospectus or the
final Prospectus was corrected in the final Prospectus (in the form it was first
provided to such parties for confirmation of sales or as amended or supplemented
pursuant to Section 3(i) prior to such confirmation of sales).
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Subsidiary Guarantors, each Initial Purchaser,
each underwriter who participates in an offering of Registrable Notes and the
other selling Holders and each of their respective directors and officers
(including each officer of the Company and the Subsidiary Guarantors who signed
the Registration Statement) and each Person, if any, who controls the Company,
any Subsidiary Guarantor, any Initial Purchaser, any underwriter or any other
selling
20
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 5(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company and the Subsidiary Guarantors by or on behalf of such Holder, as the
case may be, expressly for use in the Registration Statement (or any amendment
thereto), or the Prospectus (or any amendment or supplement thereto); provided
however that, in case of a Shelf Registration Statement, no such Holder shall be
liable for any claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Registrable Notes pursuant to such Shelf
Registration Statement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such person (the "indemnified party") shall give notice as
promptly as reasonably practicable to each person against whom such indemnity
may be sought (the "indemnifying party"), but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel, in addition to any local counsel, separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 hereof
(whether or not the indemnified parties are actual or potential parties
thereof), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel for which they are entitled to indemnification hereunder,
such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 5(a)(ii) hereof effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party for such fees and
expenses of counsel in accordance with such request prior to the date of such
settlement.
21
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
such indemnifying party or parties on the one hand, and such indemnified party
or parties on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand, and such indemnified party or
parties on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Subsidiary Guarantors and the Initial Purchasers and the Holders of the
Registrable Notes agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation (even if the
Holders were treated as one entity, and the Initial Purchasers were treated as
one entity, for such purpose) or by another method of allocation which does not
take account of the equitable considerations referred to above in Section 5. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 5 shall be deemed
to include any reasonable legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by an governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any 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 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 5,
each person, if any, who controls an Initial Purchaser or a Holder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each
director of the Company or any Subsidiary Guarantor, each officer of the Company
who signed the Registration Statement, and each Person, if any, who controls the
Company or any Subsidiary Guarantor within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company and such Subsidiary Guarantor.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, that if it ceases to be so required
to file such reports, it will upon the request of any Holder of Registrable
Notes (i) make publicly available such information as is necessary to permit
sales pursuant to Rule 144 under the 1933 Act, (ii) deliver such information to
a prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any Holder of
Registrable Notes may reasonably request, and (iii) take such further action
that is reasonable
22
in the circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Notes without registration under the
1933 Act within the limitation of the exemptions provided by (x) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time, (y) Rule 144A under
the 1933 Act, as such Rule may be amended from time to time, or (z) any similar
rules or regulations hereafter adopted by the SEC. Upon the written request of
any Holder of Registrable Notes, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. Neither the Company nor the Subsidiary
Guarantors have entered into, and neither the Company nor the Subsidiary
Guarantors on or after the date of this Agreement will enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such 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 Subsidiary Guarantors have obtained
the written consent of Holders of at least a majority in aggregate principal
amount of the outstanding Registrable Notes affected by such amendment,
modification, supplement, waiver or departure; provided, however, that no
amendment, modification, supplement or waiver or consent to any departure from
the provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder.
(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 (other than an Initial Purchaser), at the most
current address set forth on the records of the Registrar under the Indenture,
(ii) if to an Initial Purchaser, at the most current address given by such
Initial Purchaser to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially is the address set
forth in the Purchase Agreement, and (iii) if to the Company or the Subsidiary
Guarantors, initially at the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is acknowledged, by recipient's telecopy operator, if telecopied; and on
the next business day if delivered to a courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
23
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Notes in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Subsidiary Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they deem such enforcement necessary or advisable to protect their rights.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
(j) Appointment of Agent For Service. The Company and each of the
Subsidiary Guarantors have designated CT Corporation System as their authorized
agent upon which process may be served in any legal action or proceeding,
including with respect to any state or federal securities laws, that may be
instituted in any federal court of the United States or the court of any state
thereof and arising out of or relating to this Agreement. Service of process
upon such agent as 111 Eighth Avenue, New York, NY 10011 or to the Subsidiary
Guarantors listed on Schedule D to the Purchase Agreement at the address listed
thereon, shall be deemed in every respect effective service of process upon the
Company and any Subsidiary Guarantor, as applicable, in any such legal action or
proceeding. The Company and each of the Subsidiary Guarantors hereby submit to
the nonexclusive jurisdiction of any such court in which any such legal action
or proceeding is so instituted and waive, to the extent they may effectively do
so, any objection they may have now or hereafter to the laying of the venue of
any such legal action or proceeding. The Company and the Subsidiary Guarantors
shall maintain such appointment so long as the Initial Purchasers or the Holders
shall have any rights pursuant to the terms of this Agreement. The Company and
the Subsidiary Guarantors agree to take any and all action,
24
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
such agent.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CHC HELICOPTER CORPORATION
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Senior Vice President and Chief
Financial Officer
CHC HELICOPTER HOLDINGS LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Senior Vice President and Chief
Financial Officer
CHC HELICOPTERS INTERNATIONAL INC.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Senior Vice President and Chief
Financial Officer
VIKING HELICOPTERS LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Vice President
CANADIAN HELICOPTERS (U.K.) LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Attorney Duly Appointed
CHC SCOTIA LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Director & Attorney Duly Appointed
HELIWORLD LEASING, LTD
By: /s/ Blake Fizzard
--------------------------------------
Name: Blake Fizzard
Title: Director
BRINTEL HOLDINGS LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Attorney Duly Appointed
BRINTEL HELICOPTERS LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Attorney Duly Appointed
FLIGHT HANDLING LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Attorney Duly Appointed
BOND HELICOPTER SERVICES LIMITED
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Director & Attorney Duly Appointed
NORTH DENES AERODROME LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Attorney Duly Appointed
COURT AIR (PROPRIETARY) LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Authorized Signatory
COURT HELICOPTER SERVICES
(PROPRIETARY) LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Director
COURT FLIGHT SAFETY (PROPRIETARY) LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Authorized Signatory
CHC HELICOPTERS (AFRICA)
(PROPRIETARY) LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Authorized Signatory
LLOYD HELICOPTER SERVICES LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Attorney Duly Appointed
MANAGEMENT AVIATION LIMITED
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Attorney Duly Appointed
LLOYD HELICOPTER SERVICES PTY. LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Director
LLOYD HELICOPTERS PTY. LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Director
LLOYD OFFSHORE HELICOPTERS PTY. LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Director
LLOYD BASS STRAIT HELICOPTERS PTY. LTD.
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Director
LLOYD HELICOPTERS INTERNATIONAL PTY. LTD.,
in its sole capacity and as trustee for
THE AUSTRALIAN HELICOPTERS TRUST
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Director
CHC HELICOPTERS (BARBADOS) LIMITED
By: /s/ Jim Misener
--------------------------------------
Name: Jim Misener
Title: President
CHC LEASING (BARBADOS) LIMITED
By: /s/ Jim Misener
--------------------------------------
Name: Jim Misener
Title: President
CHC CAPITAL (BARBADOS) LIMITED
By: /s/ Jim Misener
--------------------------------------
Name: Jim Misener
Title: President
CHC IRELAND LIMITED
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Director
CHC SWEDEN AB
By: /s/ Jo Mark Zurel
--------------------------------------
Name: Jo Mark Zurel
Title: Authorized Signatory
CHC NETHERLANDS BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
SCHREINER LUCHTVAART GROEP BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
CAPITAL AVIATION SERVICES BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
HANDELSMAATSCHAPPIJ SCHREINER & CO. BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
LUCHTVAARTMAATSCHAPPIJ SCHREINER
AIRWAYS BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
SCHREINER NORTHSEA HELICOPTERS BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
SCHREINER COMPONENTS BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
MULTIFABS SURVIVAL LIMITED
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
SCHREINER ONROEREND GOED BV
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
AVIATION PERSONNEL RECRUITMENT AND
MANAGEMENT (APRAM) LIMITED
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
SCHREINER TCHAD SA
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Attorney
4083423 CANADA INC.
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: President
WHIRLY BIRD SERVICES LIMITED
By: /s/ Neil Calvert
--------------------------------------
Name: Neil Calvert
Title: Director
CHC HELICOPTERS (MAURITIUS) LTD.
By: /s/ Sylvain Allard
--------------------------------------
Name: Sylvain Allard
Title: Director
HELIWORLD LEASING LTD.
By: /s/ Neil Calvert
--------------------------------------
Name: Neil Calvert
Title: Director
WHIRLY BIRD SERVICES LIMITED
By: /s/ Lars Landsnes
--------------------------------------
Name: Lars Landsnes
Title: Director
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: (signed)
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
J.P. MORGAN SECURITIES INC.
By: (signed)
-------------------------------
Authorized Signatory
SCOTIA CAPITAL (USA) INC.
By: /s/ Frank Pinon
-------------------------------
Authorized Signatory
Frank Pinon
Managing Director
Head of U.S. Fixed Income