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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of March 16, 2004
by and among
TOLL BROTHERS FINANCE CORP. and
TOLL BROTHERS, INC.
and
BANC ONE CAPITAL MARKETS, INC. and
CITIGROUP GLOBAL MARKETS INC.
as the Initial Purchaser Representatives
for themselves and the other Initial Purchasers party hereto
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of March 16,
2004 by and among TOLL BROTHERS FINANCE CORP., a Delaware corporation (the
"Issuer"), TOLL BROTHERS, INC. (the "Company"), BANC ONE CAPITAL MARKETS, INC.
("Banc One") and CITIGROUP GLOBAL MARKETS INC. (together with Banc One, the
Representatives) and each of the other initial purchasers named on Schedule A
attached hereto (together with the Representatives, the "Initial Purchasers".
This Agreement is made pursuant to the Purchase Agreement dated March
9, 2004 by and among the Issuer, the Company and Banc One and Citigroup as
Representatives of the Initial Purchasers (the "Purchase Agreement"), which
provides for the sale by the Issuer to the Initial Purchasers of $300,000,000
aggregate principal amount of the Issuer's 4.95% Senior Notes due 2014 (the
"Notes") fully and unconditionally guaranteed (the "Guarantee", and together
with the Notes, the "Securities") by the Guarantors (as defined in the Purchase
Agreement). In order to induce the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the Initial Purchasers'
obligations thereunder, the Issuer and the Company have agreed to provide to the
Initial Purchasers and their respective direct and indirect transferees and
assigns 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.
"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.
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Additional Interest Payment Date" shall have the meaning set forth in
Section 2(e) hereof.
"Agreement" shall have the meaning set forth in the preamble to this
agreement.
"Closing Time" shall mean March 16, 2004.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Issuer, including any agent thereof; provided,
however, that any such depositary must at all times have an address in the
Borough of Manhattan, in the City of New York.
"Exchange Offer" shall mean the exchange offer by the Issuer and the
Guarantors of Exchange Securities for Registrable Securities 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 S-4 (or, if applicable, on another appropriate
form) covering the Registrable Securities, and all amendments and supplements to
such registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein.
"Exchange Securities" shall mean the 4.95% Senior Notes due 2014 issued
by the Issuer and the guarantee thereof issued by the Guarantors under the
Indenture containing terms identical to the Notes and the Guarantee,
respectively (except that (i) interest on the Exchange Securities shall accrue
from the last date to which interest has been paid or duly provided for on the
Notes or, if no such interest has been paid or duly provided for, from the
Interest Accrual Date, (ii) provisions relating to an increase in the stated
rate of interest on the Notes upon the occurrence of a Registration Default
shall be eliminated, (iii) the transfer restrictions and legends relating to
restrictions on ownership and transfer thereof as a result of the issuance of
the Securities without registration under the 1933 Act shall be eliminated, (iv)
the denominations thereof shall be $1,000 and integral multiples of $1,000 and
(v) all of the Exchange Securities will be represented by one or more global
Exchange Securities in book-entry form unless exchanged for Exchange Securities
in definitive certificated form under the circumstances provided in the
Indenture), to be offered to Holders of Registrable Securities in exchange for
Registrable Securities pursuant to the Exchange Offer.
"Holders" shall mean (i) the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their successors, assigns and direct
and indirect transferees who become registered owners of Registrable Securities
under the Indenture and (ii) each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-Dealer is required
to deliver a Prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture, dated as of November 22, 2003,
between the Issuer, the Guarantors and Bank One Trust Company, N.A., as Trustee,
as supplemented by the First Supplemental Indenture, dated as of May 1, 2003,
the Second Supplemental Indenture, dated as of November 3, 2003, the Third
Supplemental Indenture, dated as of January 26, 2004, the Fourth Supplemental
Indenture, dated as of March 1, 2004, and the Authorizing Resolutions, dated
March 9, 2004, as the same may be further amended or supplemented from time to
time in accordance with the terms thereof.
"Inspectors" shall have the meaning set forth in Section 3(q).
"Interest Accrual Date" means March 16, 2004.
"Initial Purchasers" shall have the meaning set forth in the preamble
to this Agreement.
"Issuer" shall have the meaning set forth in the preamble to this
Agreement and also includes the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding, excluding
Exchange Securities referred to in clause (ii) of the definition of "Holders"
above; provided that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities or Exchange Securities is required
hereunder, Registrable Securities and Exchange Securities held by the Company or
any of its affiliates (as such term is defined in Rule 405 under the 1933 Act)
shall be disregarded in determining whether such consent or approval was given
by the Holders of such required percentage.
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"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notifying Broker-Dealer" shall have the meaning set forth in Section
3(h).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(h).
"Person" shall mean an individual, partnership, joint venture, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"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 Securities 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 or deemed to be
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that any Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been declared
effective under the 1933 Act and such Securities shall have been disposed of
pursuant to such Registration Statement, (ii) such Securities shall have been
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not rule 144A) under the 1933 Act, (iii) such Securities shall have
ceased to be outstanding, (iv) such Securities shall have been exchanged for
Exchange Securities which have been registered pursuant to the Exchange Offer
Registration Statement upon consummation of the Exchange Offer unless, in the
case of any Exchange Securities referred to in this clause (iv), such Exchange
Securities are held by Participating Broker-Dealers or otherwise are not freely
tradeable without any limitations or restrictions under the 1933 Act (in which
case such Exchange Securities will be deemed to be Registrable Securities until
such time as such Exchange Securities are sold to a purchaser in whose hands
such Exchange Securities are freely tradeable without any limitations or
restrictions under the 1933 Act) or (v) such Securities shall have been
exchanged for Private Exchange Securities pursuant to this Agreement (in which
case such Private Exchange Securities will be deemed to be Registrable
Securities until such time as such Private Exchange Securities are sold to a
purchaser in whose hands such Private Exchange Securities are freely tradeable
without any limitation or restrictions under the 1933 Act).
"Registration Default" shall have the meaning set forth in Section
2(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuer and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or NASD
registration and filing fees, (ii) all fees and expenses incurred in connection
with compliance with state or other securities or blue sky laws and compliance
with the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with qualification of any
of the Exchange Securities or Registrable Securities under state or other
securities or blue sky laws and any filing with and review by the NASD), (iii)
all expenses of any Persons in preparing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
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any underwriting agreements, securities sales agreements, certificates
representing the Securities or Exchange Securities and other documents relating
to the performance of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and expenses incurred in connection with the listing, if any,
of any of the Securities, Private Exchange Securities (if any) or Exchange
Securities on any securities exchange or exchanges or on any quotation system,
(vi) all fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (vii) the fees and disbursements of counsel
for the Company and the fees and expenses of independent public accountants for
the Company or for any other Person, business or assets whose financial
statements are included in any Registration Statement or Prospectus, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance or compliance, (viii) the fees and expenses of a
"qualified independent underwriter" as defined by Conduct Rule 2720 of the NASD
(if required by the NASD rules) and the fees and disbursements of its counsel,
(ix) the fees and expenses of the Trustee, any registrar, any depositary, any
paying agent, any escrow agent or any custodian, in each case including fees and
disbursements of their respective counsel, (x) fees and expenses of all other
Persons retained by the Issuer and Guarantors, (xi) internal expenses of the
Issuer and the Guarantors (including, without limitation, all salaries and
expenses of officers and employees of the Issuer and the Guarantors performing
legal or accounting duties), (xii) the expense of an annual audit, and (xiii) in
the case of an underwritten offering, any fees and disbursements of the
underwriters customarily paid by issuer or sellers of securities and the fees
and expenses of any special experts retained by the Issuer and the Guarantors in
connection with any Registration Statement but excluding (except as otherwise
provided herein) fees of counsel to the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder; provided, however, in the event the Majority
Holders designate in writing one counsel to act as counsel to the Holders in
connection with any Registration Statement, the Issuer and the Company shall
pay, and the Company shall cause the Subsidiary Guarantors to pay, all fees and
disbursements of such counsel.
"Registration Statement" shall mean any registration statement of the
Issuer and the Guarantors relating to any offering of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement (including,
without limitation, any Exchange Offer Registration Statement and any Shelf
Registration Statement), 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 or deemed to be incorporated by reference therein.
"Representatives" shall have the meaning set forth in the preamble to
this Agreement.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof for an offering to be made on a continuing basis pursuant to
Rule 415 under the 1933 Act covering all of the Registrable Securities on Form
S-1 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in the manner designated by such Holders.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuer and the Guarantors pursuant to the provisions of Section
2(b) of this Agreement which covers all of the Registrable Securities 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
or deemed to be incorporated by reference therein.
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"Subsidiary Guarantor" shall mean any subsidiary of the Company that
guarantees the obligations of the Issuer under the Securities and the Indenture.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"Trustee" shall mean the trustee with respect to the Securities, the
Private Exchange Securities (if any) and the Exchange Securities under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 5(a).
For purposes of this Agreement, (i) all references in this Agreement to
any Registration Statement, preliminary prospectus or Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the SEC pursuant to its Electronic Data Gathering, Analysis and
Retrieval system; (ii) all references in this Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
in any Registration Statement, preliminary prospectus or Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Registration Statement,
preliminary prospectus or Prospectus, as the case may be; (iii) all references
in this Agreement to amendments or supplements to any Registration Statement,
preliminary prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated or deemed to be
incorporated by reference in such Registration Statement, preliminary prospectus
or Prospectus, as the case may be; (iv) all references in this Agreement to Rule
144, Rule 144A or Rule 405 under the 1933 Act, and all references to any
sections or subsections thereof or terms defined therein, shall in each case
include any successor provisions thereto; and (v) all references in this
Agreement to days (but not to business days) mean calendar days.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. The Issuer and the Company shall, and
the Company shall cause the Subsidiary Guarantors to, (A) file with the SEC
within 120 days of the Closing Time an Exchange Offer Registration Statement
covering the offer by the Issuer and the Guarantors to the Holders to exchange
all of the Registrable Securities for a like aggregate principal amount of
Exchange Securities, (B) use their reasonable best efforts to cause such
Exchange Offer Registration Statement to be declared effective by the SEC no
later than the 225th day after the Closing Time, (C) use their reasonable best
efforts to cause such Registration Statement to remain effective until the
closing of the Exchange Offer and (D) use their reasonable best efforts to
consummate the Exchange Offer no later than 45 days after the effective date of
the Exchange Offer Registration Statement. Upon the effectiveness of the
Exchange Offer Registration Statement, the Issuer and the Company shall, and the
Company shall cause the Subsidiary Guarantors to, promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Securities for Exchange Securities
(assuming that such Holder is not an affiliate of any of the Issuer and any of
the Guarantors within the meaning of Rule 405 under the 1933 Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing such Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act or under the securities or blue sky laws of the
states of the United States.
In connection with the Exchange Offer, the Issuer and the Company
shall, and the Company shall cause the Subsidiary Guarantors to:
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(i) promptly 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;
(ii) keep the Exchange Offer open for not less than 20
business days (or longer if required by applicable law) after the date
notice thereof is mailed to the Holders and, during the Exchange Offer,
offer to all Holders who are legally eligible to participate in the
Exchange Offer the opportunity to exchange their Registrable Securities
for Exchange Securities;
(iii) use the services of the Depositary for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Registrable
Securities at any time prior to the close of business, 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 Prospectus or the
related letter of transmittal or related documents a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for exchange,
and a statement that such Holder is withdrawing its election to have
such Securities exchanged; and
(v) otherwise comply with all applicable laws relating to the
Exchange Offer.
If, at or prior to the consummation of the Exchange Offer, an Initial
Purchaser holds any Securities acquired by it and having the status of an unsold
allotment in the initial distribution, the Issuer shall, upon the request of
such Initial Purchaser, simultaneously with the delivery of the Exchange
Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in
exchange for such Securities a like aggregate principal amount of debt
securities, guaranteed by the Guarantors of the Issuer that are identical
(except that such debt securities and such guarantee shall be subject to
transfer restrictions and shall bear a legend relating to restrictions on
ownership and transfer as a result of the issuance thereof without registration
under the 1933 Act, shall provide for the payment of Additional Interest and
shall be issuable in denominations of $100,000 in integral multiples of $1,000
in excess thereof) to the Exchange Securities (the "Private Exchange
Securities"). The Issuer shall use its reasonable best efforts to have the
Private Exchange Securities bear the same CUSIP number as the Exchange
Securities and, if unable to do so, the Issuer will, at such time as any Private
Exchange Security ceases to be a "restricted security" within the meaning of
Rule 144 under the 1933 Act, permit any such Private Exchange Security to be
exchanged for a like aggregate principal amount of Exchange Securities.
The Exchange Securities and the Private Exchange Securities (if any)
shall be issued under the Indenture, which shall be qualified under the TIA. The
Indenture shall provide that the Exchange Securities, the Private Exchange
Securities (if any) and the Securities shall vote and consent together on all
matters as a single class and shall constitute a single series of debt
securities issued under the Indenture.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities duly
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 Securities so accepted for exchange by the
Issuer and the Guarantors; and
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(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities equal in
principal amount to the principal amount of the Registrable Securities
of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security (if
any) will accrue from the last date on which interest was paid or duly provided
for on the Securities surrendered in exchange therefor or, if no interest has
been paid or duly provided for on such Securities, from the Interest Accrual
Date. 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 any applicable law or any applicable interpretation of the staff of the
SEC and (ii) that the Holders tender the Registrable Securities to the Issuer
and the Guarantors in accordance with the Exchange Offer. Each Holder of
Registrable Securities (other than Participating Broker-Dealers) who wishes to
exchange such Registrable Securities for Exchange Securities in the Exchange
Offer shall have represented that (i) it is not an affiliate (as defined in Rule
405 under the 1933 Act) of any of the Issuer and any of the Guarantors, 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 Securities 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 Person to participate in the distribution (within
the meaning of the 1933 Act) of the Exchange Securities, and it shall have made
such other representations as may be reasonably necessary under applicable SEC
rules, regulations or interpretations to render available the use of Form S-4 or
another appropriate form under the 1933 Act. To the extent permitted by law, the
Issuer and the Company shall, and the Company shall cause the Subsidiary
Guarantors to, inform the Representatives of the names and addresses of the
Holders of Securities to whom the Exchange Offer is made and, to the extent such
information is available to the Issuer and the Guarantors, the names and
addresses of the beneficial owners of such Securities, and the Initial
Purchasers shall have the right to contact such Holders and beneficial owners
and otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the staff of the SEC, the Issuer and the
Guarantors are not permitted to effect the Exchange Offer as contemplated by
Section 2(a) hereof, (ii) if for any other reason (A) the Exchange Offer
Registration Statement is not declared effective within 225 days following the
Closing Time or (B) the Exchange Offer is not consummated within 45 days after
effectiveness of the Exchange Offer Registration Statement, (iii) if any Holder
(other than an Initial Purchaser holding Securities acquired directly from the
Issuer and the Guarantors) is not eligible to participate in the Exchange Offer
or elects to participate in the Exchange Offer but does not receive Exchange
Securities which are freely tradeable without any limitations or restrictions
under the 1933 Act or any applicable state securities or blue sky laws, (iv)
upon the request of an Initial Purchaser within 60 days following the
consummation of the Exchange Offer (provided that, in the case of this clause
(iv), such Initial Purchaser shall hold Registrable Securities (including,
without limitation, Private Exchange Securities) that it acquired directly from
the Issuer and the Guarantors), or (v) if in the Majority Holders' reasonable
judgment, the interests of Holders taken as a whole, would be materially
adversely affected by consummation of an Exchange Offer, the Issuer and the
Company shall (and the Company shall cause any then existing Subsidiary
Guarantor), at their cost:
(A) as promptly as practicable, but no later than (a) the
225th day after the Closing Time or (b) the 45th day after any such
filing obligation arises, whichever is later, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders of
such Registrable Securities and set forth in such Shelf Registration
Statement;
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(B) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as promptly
as practicable, but in no event later than the 270th day after the
Closing Time (or, in the case of a request by an Initial Purchaser
pursuant to clause (iv) above, within 30 days after such request). In
the event that the Issuer and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) or (iv) above,
the Issuer and the Company shall, and the Company shall cause the
Subsidiary Guarantors to, file and use their reasonable 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
Securities and a Shelf Registration Statement (which, at the discretion
of the Issuer and the Company, may be a combined Registration Statement
with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by such Holder or such Initial
Purchaser, as applicable;
(C) use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
as required, in order to permit the Prospectus forming part thereof to
be usable by Holders for a period of two years after the latest date on
which any Securities are originally issued by the Issuer and the
Guarantors (subject to extension pursuant to the last paragraph of
Section 3) or, if earlier, when all of the Registrable Securities
covered by such Shelf Registration Statement (i) have been sold
pursuant to the Shelf Registration Statement in accordance with the
intended method of distribution thereunder or (ii) cease to be
Registrable Securities; and
(D) notwithstanding any other provisions hereof, ensure that
(i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any supplements thereto comply in
all material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment
thereto does not, when it becomes effective, 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 (iii) any Prospectus forming part of any Shelf
Registration Statement and any amendment or supplement to such
Prospectus does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
The Issuer and the Company shall not permit, and the Company shall
cause the Subsidiary Guarantors not to permit, any securities other than
Registrable Securities to be included in any Shelf Registration Statement. The
Issuer and the Company further agree, and the Company shall cause the Subsidiary
Guarantors to agree, to supplement or amend the Shelf Registration Statement if
reasonably requested by the Majority Holders with respect to information
relating to the Holders and otherwise as required by Section 3(b) below, to use
their reasonable best efforts to cause any such amendment to become effective
and such Shelf Registration Statement to become usable as soon as practicable
thereafter and to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) Expenses. The Issuer and the Company shall pay, and the Company
shall cause the Subsidiary Guarantors to pay, all Registration Expenses in
connection with the registration pursuant to Section 2(a) and 2(b), whether or
not the Exchange Offer Registration Statement or Shelf Registration Statement is
filed or becomes effective and, in the case of any Shelf Registration Statement,
will reimburse the Holders or the Initial Purchasers for the reasonable fees and
disbursements of one counsel (in addition to any local counsel) designated in
writing by the Majority Holders (or, if a Shelf Registration Statement filed
solely pursuant to clause (iv) of the first paragraph of Section 2(b),
designated by the Representatives) to act as counsel for the Holders of the
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Registrable Securities in connection therewith. Each Holder shall pay all fees
and disbursements of its counsel other than as set forth in the preceding
sentence or in the definition of Registration Expenses and all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to a Shelf
Registration Statement. The Issuer and the Company shall pay, and the Company
shall cause the Subsidiary Guarantors to pay, all documentary, stamp, transfer
or other transactional taxes attributable to the issuance or delivery of the
Exchange Securities or Private Exchange Securities in exchange for the
Registrable Securities.
(d) Effective Registration Statement.
(i) The Issuer and the Guarantors shall be deemed not to have
used their reasonable best efforts to cause the Exchange Offer Registration
Statement or any Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite periods set forth herein if any of the
Issuer and the Guarantors voluntarily take any action that could reasonably be
expected to result in any such Registration Statement not being declared
effective or remaining effective or in the Holders of Registrable Securities
(including, under the circumstances contemplated by Section 3(h) hereof,
Exchange Securities) covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Issuer or such
Guarantor in good faith and for valid business reasons (but not including
avoidance of the Issuer's and the Guarantor's obligations hereunder), including
the acquisition or divestiture of assets or a material corporate transaction or
event so long as the Issuer and the Guarantors promptly comply with the
notification requirements of Section 3(m) hereof, if applicable. Nothing in this
paragraph shall prevent the accrual of Additional Interest on any Registrable
Securities, Exchange Securities or Private Equity Securities.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof shall 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 Securities 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 shall be deemed not to have been effective during the
period of such interference until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume.
(iii) During any 365-day period, the Issuer and the Guarantors
may, by notice as described in Section 3(g), suspend the availability of a Shelf
Registration Statement (and, if the Exchange Offer Registration Statement is
being used in connection with the resale of Exchange Securities by Participating
Broker-Dealers as contemplated by Section 3(h), the Exchange Offer Registration
Statement) and the use of the related Prospectus for a period of up to 30
consecutive days (except for the consecutive 30-day period immediately prior to
final maturity of the Securities), but no more than an aggregate of 60 days
during any 365-day period, upon the happening of any event or the discovery of
any fact referred to in Section 3(g)(vi), but subject to compliance by the
Issuer and the Guarantors with their obligations under the last paragraph of
Section 3.
(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 120th day following the Closing Time,
or
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(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 225th day following the Closing
Time, or
(iii) the Exchange Offer is not consummated on or prior to the
45th day following the effective date of the Exchange Offer
Registration Statement, or
(iv) if required, a Shelf Registration Statement is not filed
with the SEC on or prior to (A) the 225th day following the Closing
Time or (B) the 45th day after the filing obligation arises, whichever
is later, or
(v) if required, a Shelf Registration Statement is not
declared effective on or prior to the 270th day following the Closing
Time (or, if a Shelf Registration Statement is required to be filed
upon the request of the Initial Purchasers, within 30 days after such
request), or
(vi) a Shelf Registration Statement is declared effective by
the SEC, but such Shelf Registration Statement ceases to be effective
or such Shelf Registration Statement or the Prospectus included therein
ceases to be usable in connection with resales of Registrable
Securities for any reason, except in accordance with Section 2(d)(iii)
hereof, or
(vii) the Exchange Offer Registration Statement is declared
effective by the SEC but, if the Exchange Offer Registration Statement
is being used in connection with the resale of Exchange Securities as
contemplated by Section 3(h)(B) of this Agreement, the Exchange Offer
Registration Statement ceases to be effective or the Exchange Offer
Registration Statement or the Prospectus included therein ceases to be
usable in connection with resales of Exchange Securities for any reason
during the 180-day period referred to in Section 3(h)(A) of this
Agreement (as such period may be extended pursuant to the last
paragraph of Section 3 of this Agreement) and either (A) the aggregate
number of days in any consecutive 365-day period for which the Exchange
Offer Registration Statement or such Prospectus shall not be effective
or usable exceeds 60 days, (B) the Exchange Offer Registration
Statement or such Prospectus shall not be effective or usable for more
than two periods (regardless of duration) in any consecutive 365-day
period or (C) the Exchange Offer Registration Statement or the
Prospectus shall not be effective or usable for a period of more than
30 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by the Registrable Securities shall be increased ("Additional Interest") by
one-quarter of one percent (0.25%) per annum, immediately following such 120-day
period in the case of clause (i) above, immediately following such 225-day
period in the case of clause (ii) above, immediately following such 45-day
period in the case of clause (iii) above, immediately following any such 225-day
period or 45-day period, whichever ends later, in the case of clause (iv) above,
immediately following any such 270-day period or 30-day period, whichever ends
first, in the case of clause (v) above, immediately following the 30th
consecutive day or the 60th day in any consecutive 365-day period, whichever
occurs first, that a Shelf Registration Statement shall not be effective or a
Shelf Registration Statement or the Prospectus included therein shall not be
usable as contemplated by clause (vi) above, immediately following the 60th day
in any consecutive 365-day period, as of the first day of the third period in
any consecutive 365-day period or immediately following the 30th consecutive
day, whichever occurs first, that the Exchange Offer Registration statement
shall not be effective or the Exchange Offer Registration Statement or the
Prospectus included therein shall not be usable as contemplated by clause (vii)
above, which rate will be increased by an additional one-quarter of one percent
(0.25%) per annum immediately following each 90-day period that any Additional
Interest continues to accrue under any circumstances; provided that the
aggregate increase in such annual interest rate may in no event exceed one-half
of one percent (0.50%) per annum. Upon the filing of the Exchange Offer
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Registration Statement after the 120-day period described in clause (i) above,
the effectiveness of the Exchange Offer Registration Statement after the 225-day
period described in clause (ii) above, the consummation of the Exchange Offer
after the 45-day period described in clause (iii) above, the filing of the Shelf
Registration Statement after the 225-day period or 30-day period day, as the
case may be, described in clause (iv) above, the effectiveness of a Shelf
Registration Statement after the 270-day period or 30-day period, as the case
may be, described in clause (v) above, or the Shelf Registration Statement once
again being effective or the Shelf Registration Statement and the Prospectus
included therein becoming usable in connection with resales of Registrable
Securities, as the case may be, in the case of clause (vi) above, or the
Exchange Offer Registration Statement once again becoming effective or the
Exchange Offer Registration Statement and the Prospectus included therein
becoming usable in connection with resales of Exchange Securities, as the case
may be, in the case of clause (vii) thereof, such Additional Interest shall
cease to accrue on the Registrable Securities from the date of such filing,
effectiveness, consummation or resumption of effectiveness or useability, as the
case may be, so long as no other Registration Default shall have occurred and
shall be continuing at such time and the Issuer and the Guarantors are otherwise
in compliance with this paragraph; provided, however, that, if after any such
Additional Interest ceases to accrue, one or more Registration Defaults shall
again occur, such Additional Interest shall again accrue pursuant to the
foregoing provisions, beginning at one-quarter of one percent (0.25%) per annum.
The Issuer and the Company shall notify, and the Company shall cause
the Subsidiary Guarantors to notify, the Trustee within three business days
after the occurrence of each Registration Default. Additional Interest payable
with respect to any Registrable Securities shall be due and payable on each
March 15 and September 15 (each, an "Additional Interest Payment Date"). If
Additional Interest has accrued on such Registrable Security during the
semi-annual period immediately preceding such Additional Interest Payment Date,
Additional Interest shall be payable to the Person in whose name such
Registrable Security (or one or more predecessor Securities) is registered at
the close of business on March 1 or September 1, whether or not a business day,
next preceding such Additional Interest Payment Date. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the occurrence of the applicable Registration Default. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Registrable Securities, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such semi-annual period (determined on the
basis of a 360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of which
is 360.
Anything herein to the contrary notwithstanding, any Holder who was, at
the time the Exchange Offer was pending and consummated, eligible to exchange,
and did not validly tender, its Securities for Exchange Securities in the
Exchange Offer will not be entitled to receive any Additional Interest. For
purposes of clarity, it is hereby acknowledged and agreed that, under current
interpretations of law by the SEC, an Initial Purchaser is not eligible to
participate in the Exchange Offer with respect to unsold allotments of
Securities acquired from the Issuer and held by such Initial Purchaser.
3. Registration Procedures. In connection with the obligations of the
Issuer and the Guarantors with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, the Issuer and the Company shall (and the
Company shall cause the Subsidiary Guarantors to):
(a) prepare and file with the SEC a Registration Statement or,
if required, Registration Statements, within the time periods specified
in Section 2, on the appropriate form under the 1933 Act, which form
(i) shall be selected by the Issuer and the Guarantors, (ii) shall, in
the case of a Shelf Registration Statement, be available for the sale
of the Registrable Securities by the selling Holders thereof and (iii)
shall comply as to form in all material respects with the requirements
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of the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith, and use
their reasonable best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2
hereof; provided that, if (1) a Shelf Registration Statement is filed
pursuant to Section 2(b), or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a) is required
to be delivered under the 1933 Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities for such period of time as such
Participating Broker-Dealer must comply with such requirements in order
to resell the Exchange Securities, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto the
Issuer and the Company shall, and the Company shall cause the
Subsidiary Guarantors to if requested, furnish and afford the Holders
of the Registrable Securities to be registered pursuant to such Shelf
Registration Statement, or each Participating Broker-Dealer and to
their counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies of
any documents to be incorporated or deemed to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in
each case at least five business days prior to such filing). The Issuer
and the Company shall not file, and the Company shall cause the
Subsidiary Guarantors to not to file, any such Registration Statement
or Prospectus or any amendments or supplements thereto if the Majority
Holders of Registrable Securities covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case may be,
their counsel, or the managing underwriters, if any, shall reasonably
object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
continuously 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 and the 1934 Act with
respect to the disposition of all Securities 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) use their reasonable best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Securities or the Exchange Securities to be sold by
any Participating Broker-Dealer, for sale in any jurisdiction, and, if
any such order is issued, to use their reasonable best efforts to
obtain the withdrawal of any such order at the earliest possible date;
(d) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities, at least ten business days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Securities is being filed and advising such Holders that
the distribution of Registrable Securities will be made in accordance
with the method elected by the Majority Holders; (ii) furnish to each
Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for the Holders and to each underwriter of an
underwritten offering of Registrable Securities, 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, counsel or underwriter may reasonably
request, including financial statements and schedules and, if such
Holder, counsel or underwriter so requests, all exhibits (including
those incorporated by reference) in order to facilitate the public sale
or other disposition of the Registrable Securities; and (iii) subject
to the last paragraph of this Section 3, consent to the use of the
Prospectus, including each preliminary Prospectus, or any amendment or
supplement thereto by each of the Holders and underwriters of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by any Prospectus or any amendment or
supplement thereto;
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(e) use their reasonable best efforts to register or qualify
the Registrable Securities under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of
an underwritten offering of Registrable Securities shall reasonably
request, to cooperate with the Holders and the underwriters of any
Registrable Securities in connection with any filings required to be
made with the NASD, to 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
Securities owned by such Holder; provided, however, that the Issuer and
the Guarantors shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where they
would not otherwise be required to qualify but for this Section 3(e) or
(ii) take any action which would subject them to general service of
process or taxation in any such jurisdiction if they are not then so
subject;
(f) use their reasonable best efforts to cause the Registrable
Securities covered by any Registration Statement to be registered with
or approved by such governmental agencies or authorities as may be
necessary to enable the Holder or Holders thereof or the underwriter,
if any, to consummate the disposition of such Registrable Securities,
except as may be required solely as a consequence of the nature of such
Holder's business, in which case the Issuer and the Company will
cooperate, and the Company shall cause the Subsidiary Guarantors to
cooperate, in all reasonable respects with the filing of such
Registration Statement and the grating of such approvals;
(g) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a 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 or supplements to a
Registration Statement or Prospectus or for additional information
after a 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 Securities covered thereby the representations and
warranties of the Issuer and the Guarantors contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to be true and
correct, (v) of the receipt by the Issuer and the Guarantors of any
notification with respect to the suspension of the qualification of the
Registrable Securities 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 is contemplated in
Section 2(d)(i)(A) or 2(d)(i)(B) or which makes any statement made in
such Shelf Registration Statement or the related Prospectus untrue in
any material respect or which constitutes an omission to state a
material fact in such Shelf Registration Statement or Prospectus and
(vii) of any determination by the Issuer and the Guarantors that a
post-effective amendment to a Registration Statement would be
appropriate. Without limitation to any other provisions of this
Agreement, the Issuer and the Company agree, and the Company shall
cause the Subsidiary Guarantors to agree, that this Section 3(g) shall
also be applicable, mutatis mutandis, with respect to the Exchange
Offer Registration Statement and the Prospectus included therein to the
extent that such Prospectus is being used by Participating
Broker-Dealers as contemplated by Section 3(h);
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(h) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement (A) a "Plan of Distribution"
section (which section shall be reasonably acceptable to the
Representatives) covering the use of the Prospectus included in the
Exchange Offer Registration Statement by broker-dealers who have
exchanged their Registrable Securities for Exchange Securities for the
resale of such Exchange Securities and (B) a statement to the effect
that any such broker-dealers who wish to use the related Prospectus in
connection with the resale of Exchange Securities acquired as a result
of market-making or other trading activities will be required to notify
the Issuer and the Guarantors to that effect, together with
instructions for giving such notice (which instructions shall include a
provision for giving such notice by checking a box or making another
appropriate notation on the related letter of transmittal) (each such
broker-dealer who gives notice to the Issuer and the Guarantors as
aforesaid being hereinafter called a "Notifying Broker-Dealer"), (ii)
furnish to each Notifying 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 who holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (iv) subject to the last paragraph of this Section
3, consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by
any Notifying Broker-Dealer in connection with the sale or transfer of
Exchange Securities, and (v) include in the letter of transmittal or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer 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 Securities. If
the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities 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 Securities 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."
(A) to the extent any Notifying Broker-Dealer
participates in the Exchange Offer, (i) the Issuer and the
Company shall use, and the Company shall cause the Subsidiary
Guarantors to use, their reasonable best efforts to maintain
the effectiveness of the Exchange Offer Registration Statement
for a period of 180 days (subject to extension pursuant to the
last paragraph of this Section 3) following the last date on
which exchanges are accepted pursuant to the Exchange Offer,
and (ii) the Issuer and the Company will comply, and the
Company shall cause the Subsidiary Guarantors, to comply,
insofar as relates to the Exchange Offer Registration
Statement, the Prospectus included therein and the offering
and sale of Exchange Securities pursuant thereto, with their
obligations under Section 2(b)(D), the last paragraph of
Section 2(b), Section 3(c), 3(e), 3(g), 3(k), 3(l), 3(m), 3(q)
and 3(v), and the last two paragraphs of this Section 3 as if
-14-
all references therein to a Shelf Registration Statement, the
Prospectus included therein and the Holders of Registrable
Securities referred, mutatis mutandis, to the Exchange Offer
Registration Statement, the Prospectus included therein and
the applicable Notifying Broker-Dealers and, for purposes of
this Section 3(h), all references in any such paragraphs or
sections to the "Majority Holders" shall be deemed to mean,
solely insofar as relates to this Section 3(h), the Notifying
Broker-Dealers who are the Holders of the majority in
aggregate principal amount of the Exchange Securities which
are Registrable Securities;
(B) to the extent any Notifying Broker-Dealer
participates in the Exchange Offer, the Issuer and the Company
shall use, and the Company shall cause the Subsidiary
Guarantors to use, their reasonable best efforts to cause to
be delivered at the request of an entity representing such
Notifying Broker-Dealers (which entity shall be the
Representatives), unless it elects not to act as such
Representatives, a "cold comfort" letter with respect to the
Prospectus in the form existing on the last date on 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 (B) above; and
(C) the Issuer and the 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) or 3(m) hereof, or take any
other action as a result of this Section 3(h), for a period
exceeding 270 days (subject to extension pursuant to the last
paragraph of this Section 3) after the last date on which
exchanges are accepted pursuant to the Exchange Offer, and
Notifying Broker-Dealers shall not be authorized by the Issuer
and the Guarantors to, and shall not, deliver such Prospectus
after such period in connection with resales contemplated by
this Section 3;
(i) in the case of a Shelf Registration, furnish counsel for
the Holders of Registrable Securities and counsel for any underwriters
of Registrable Securities, copies of any request by the SEC or any
state securities authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information;
(j) use their reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
as soon as practicable and provide immediate notice to each Holder of
the withdrawal of any such order;
(k) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendments thereto (without documents incorporated or deemed to be
incorporated therein by reference or exhibits thereto, unless
requested);
(l) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
cause such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and in a form
eligible for deposit with the Depositary and registered in such names
as the selling Holders or the underwriters, if any, may reasonably
request in writing at least one business day prior to the closing of
any sale of Registrable Securities;
(m) in the case of a Shelf Registration, upon the occurrence
of any event or the discovery of any facts as contemplated by Section
3(g)(vi) hereof, use their reasonable best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated or deemed to be
-15-
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, 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 in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The Issuer and the Company agree to notify, and the Company shall cause
the Subsidiary Guarantors 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 Issuer and the Guarantors have amended or supplemented the
Prospectus to correct such misstatement or omission. At such time as
such public disclosure is otherwise made or the Issuer and the
Guarantors determine 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 Issuer and the Company agree, and the
Company shall cause the Subsidiary Guarantors to agree, promptly to
notify each Holder of such determination and, if necessary, to furnish
each Holder such number of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
(n) provide the Trustee with any necessary printed or
word-processed certificates for the Exchange Securities or Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(o) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes, if any, 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, if any, 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;
(p) in the case of a Shelf Registration, the Majority Holders
of the Registrable Securities registered pursuant to such Shelf
Registration Statement shall have the right to direct the Issuer and
the Guarantors to effect not more than one underwritten registration
and, in connection with such underwritten registration, the Issuer and
the Company shall, and the Company shall cause the Subsidiary
Guarantors to, enter into agreements (including underwriting agreements
or similar agreements) and take all other customary and appropriate
actions (including those reasonably requested by the Majority Holders
of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters,
in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings as
may be reasonably requested by such Holders and underwriters;
(ii) obtain opinions of counsel to the Issuer and the
Company (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, and the Majority Holders of the Registrable
Securities being sold) addressed to each selling Holder and
the underwriters, 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 with respect to such Shelf Registration Statement and
the Prospectus included therein, all amendments and
-16-
supplements thereto and all documents incorporated or deemed
to be incorporated by reference therein from the Issuer's and
the Company's independent certified public accountants and
from the independent certified public accountants for any
other Person or any business or assets whose financial
statements are included or incorporated by reference in the
Shelf Registration Statement, each addressed to the
underwriters, and use their reasonable best efforts to have
such letters addressed to the selling Holders of Registrable
Securities, 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 and such letters to be delivered at the
time of the pricing of such underwritten registration with an
update to such letter to be delivered at the time of closing
of such underwritten registration;
(iv) if an underwriting agreement or other similar
agreement is entered into, cause the same to set forth
indemnification and contributions provisions and procedures
substantially equivalent to the indemnification and
contributions provisions and procedures set forth in Section 5
hereof with respect to the underwriters and all other parties
to be indemnified pursuant to Section 5 hereof or such other
indemnification and contributions as shall be satisfactory to
the Issuer and the Guarantors, the applicable underwriters and
the Majority Holders of the Registrable Securities being sold;
and
(v) deliver such other documents and certificates as
may be reasonably requested and as are customarily delivered
in similar offerings.
The documents referred to in clauses (ii) and (v) above shall be
delivered at the closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any such
underwritten offering, the Issuer and the Company shall, and the
Company shall cause the Subsidiary Guarantors to, provide written
notice to the Holders of all Registrable Securities prior to the filing
of the Shelf Registration Statement 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 15 days following the date of such notice, by which such
Holder must inform the Issuer and the Guarantors of their intent to
participate in such underwritten offering and (z) include the
instructions such Holder must follow in order to participate in such
underwritten offering;
(q) if (1) a Shelf Registration Statement is filed pursuant to
Section 2(b), or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to be
delivered under the 1933 Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities for such period of time as such
Participating Broker-Dealer must comply with such requirements in order
to resell the Exchange Securities, make available for inspection by any
Holder of such Registrable Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securities, if
any, and any attorney, accountant or other agent retained by any such
Holder or each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and
other records and pertinent corporate documents of the Company and its
subsidiaries as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the
officers, directors and employees of the Company and its subsidiaries
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement; provided that any such
records, documents, properties and such information that is designated
in writing by the Issuer and the Guarantors, in good faith, as
confidential at the time of delivery of such records, documents,
-17-
properties or information shall be kept confidential by any such
representative, underwriter, counsel or accountant and shall be used
only in connection with such Shelf Registration Statement, unless such
information has become available (not in violation of this Agreement)
to the public generally or through a third party without an
accompanying obligation of confidentiality, and except that such
representative, underwriter, counsel or accountant shall have no
liability, and shall not be in breach of this provision, if disclosure
of such confidential information is made in connection with a court
proceeding or required by law, and the Issuer or the Guarantors shall
be entitled to request that such representative, underwriter, counsel
or accountant sign a confidentiality agreement to the foregoing effect.
Each such person will be required to agree that information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Issuer or the Guarantors unless and until such is
made generally available to the public through no fault or action of
such person. Each selling Holder of such Registrable Securities will be
required to further agree that it will, upon learning that disclosure
of confidential information is necessary, give notice to the Issuer and
the Company to allow the Issuer and the Company at their expense to
undertake appropriate action to prevent disclosure of the confidential
information;
(r) comply with all applicable rules and regulations of the
SEC and make generally available to the security holders of the Issuer
and the Guarantors an earnings statements satisfying the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder (or any similar
rule promulgated under the 1933 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) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold in a firm
commitment or reasonable best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Issuer and the Guarantors after
the effective date of a Registration Statement, which earnings
statements shall cover the 12-month periods provided for in Section
11(a) of the 1933 Act;
(s) upon consummation of an Exchange Offer or sale of Private
Exchange Securities, obtain an opinion of counsel to the Issuer and the
Guarantors (in form, scope and substance reasonably satisfactory to the
Representatives), addressed to the Trustee for the benefit of all
Holders participating in the Exchange Offer or sale of Private Exchange
Securities, as the case may be, to the effect that (i) the Issuer and
the Guarantors have duly authorized, executed and delivered the
Exchange Securities or the Private Exchange Securities, as the case may
be, and the Indenture, and (ii) the Exchange Securities or the Private
Exchange Securities, as the case may be, and the Indenture constitute
legal, valid and binding obligations of the Issuer and the Guarantors,
enforceable against the Issuer and the Guarantors in accordance with
their respective terms, except as such enforcement may be subject to
customary exceptions;
(t) if the Exchange Offer or sale of Private Exchange
Securities is to be consummated, upon delivery of the Registrable
Securities by the Holders to the Issuer and the Guarantors (or to such
other Person as directed by the Issuer and the Guarantors) in exchange
for the Exchange Securities and/or the Private Exchange Securities, as
the case may be, the Issuer and the Guarantors shall mark, or cause to
be marked, on such Registrable Securities that such Registrable
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; provided that
in no event shall such Registrable Securities be marked as paid or
otherwise satisfied;
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(u) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable
Securities and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any counsel or
accountant retained by such Holders or underwriters, all financial
statements and other records, documents and properties of the Issuer
and the Guarantors reasonably requested by any such Persons, and cause
the respective officers, directors, employees, and any other agents of
the Issuer and the Guarantors to supply all information reasonably
requested by any such Persons in connection with a Shelf Registration
Statement; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchasers by the Representatives and on behalf of the other parties by
one counsel designated by the holders of a majority of the Registrable
Securities, and provided further that any such records, documents,
properties and such information that is designated in writing by the
Issuer and the Guarantors, in good faith, as confidential at the time
of delivery of such records, documents, properties or information shall
be kept confidential by any such representative, underwriter, counsel
or accountant and shall be used only in connection with such Shelf
Registration Statement, unless such information has become available
(not in violation of this Agreement) to the public generally or through
a third party without an accompanying obligation of confidentiality,
and except that such representative, underwriter, counsel or accountant
shall have no liability, and shall not be in breach of this provision,
if disclosure of such confidential information is made in connection
with a court proceeding or required by law, and the Issuer or the
Guarantors shall be entitled to request that such representative,
underwriter, counsel or accountant sign a confidentiality agreement to
the foregoing effect. Each such person will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Issuer or the Guarantors
unless and until such is made generally available to the public through
no fault or action of such person. Each selling Holder of such
Registrable Securities will be required to further agree that it will,
upon learning that disclosure of confidential information is necessary,
give notice to the Issuer and the Company to allow the Issuer and the
Company at their expense to undertake appropriate action to prevent
disclosure of the confidential information;
(v) (i) in the case of an Exchange Offer, 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 such Prospectus,
provide copies of such documents to the Representatives and make such
changes in any such documents prior to the filing thereof as the
Representatives 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 Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Securities, to the Representatives, to the
underwriter or underwriters, of an underwritten offering of Registrable
Securities, and to counsel for any such Holders, the Representatives or
underwriters, and make such changes in any such document prior to the
filing thereof as the Holders of Registrable Securities, the
Representatives, any such underwriter or underwriters or any of their
respective counsel may reasonably request; and (iii) in the case of a
Shelf Registration, cause the representatives of the Issuer and the
Guarantors to be available for discussion of such documents as shall be
reasonably requested by the Holders of Registrable Securities, the
Representatives 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 Representatives 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 Representatives on behalf of such
Holders, their counsel or any underwriter shall reasonably object
within a reasonable time period;
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(w) use their reasonable best efforts to cause all Exchange
Securities to be listed on any securities exchange on which similar
debt securities issued by the Issuer and the Guarantors are then listed
if requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if
any;
(x) use their reasonable best efforts to cause the Registrable
Securities to be rated by the appropriate rating agencies, if so
requested by the Majority Holders of Registrable Securities or by the
underwriter or underwriters of an underwritten offering, unless the
Registrable Securities are already so rated;
(y) otherwise use their reasonable best efforts to comply with
all applicable rules and regulations of the SEC; and
(z) 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 their counsel.
In the case of a Shelf Registration Statement, the Issuer and the
Guarantors may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Securities to furnish to the
Issuer and the Guarantors such information regarding such Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Issuer and the Company may reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees and,
in the event that any Participating Broker-Dealer is using the Prospectus
included in the Exchange Offer Registration Statement in connection with the
sale of Exchange Securities pursuant to Section 3(h), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Issuer and the
Company of the happening of any event or the discovery of any facts of the kind
described in Section 3(g)(ii), 3(g)(iii) or 3(g)(v) through 3(g)(vii) hereof,
such Holder or Participating Broker-Dealer, as the case may be, will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until receipt by such Holder or Participating Broker-Dealer, as the
case may be, of (i) the copies of the supplemented or amended Prospectus
contemplated by Section 3(m) hereof or (ii) written notice from the Issuer and
the Company that the Shelf Registration Statement or the Exchange Offer
Registration Statement, respectively, are once again effective or that no
supplement or amendment is required. If so directed by the Issuer and the
Company, such Holder or Participating Broker-Dealer, as the case may be, will
deliver to the Issuer or the Company (at the Company's expense) all copies in
their possession, other than permanent file copies then in their possession, of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. Nothing in this paragraph shall prevent the accrual of
Additional Interest on any, Registrable Securities, Exchange Securities or
Private Equity Securities.
If the Issuer and the Company give any such notice to suspend the
disposition of Registrable Securities pursuant to the immediately preceding
paragraph, the Issuer and the Guarantors shall be deemed to have used their
reasonable best efforts to keep the Shelf Registration Statement or, in the case
of Section 3(h), the Exchange Offer Registration Statement, as the case may be,
effective during such period of suspension; provided that (i) such period of
suspension shall not exceed the time periods provided in Section 2(d)(iii)
hereof and (ii) the Issuer and the Guarantors shall use their reasonable best
efforts to file and have declared effective (if an amendment) as soon as
practicable thereafter an amendment or supplement to the Shelf Registration
Statement or the Exchange Offer Registration Statement or both, as the case may
be, or the Prospectus included therein and shall extend the period during which
the Shelf Registration Statement or the Exchange Offer Registration Statement or
both, as the case may be, shall be maintained effective pursuant to this
Agreement (and, if applicable, the period during which Participating
Broker-Dealers may use the Prospectus included in the Exchange Offer
Registration Statement pursuant to Section 3(h) hereof) by the number of days
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during the period from and including the date of the giving of such notice to
and including the earlier of the date when the Holders or Participating
Broker-Dealers, respectively, shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions and the effective date
of written notice from the Company to the Holders or Participating
Broker-Dealers, respectively, that the Shelf Registration Statement or the
Exchange Offer Registration Statement, respectively, are once again effective or
that no supplement or amendment is required.
4. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be reasonably acceptable to the
Issuer and the Guarantors. No Holder of Registrable Securities may participate
in any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution.
(a) The Issuer and the Company jointly and severally agree (and the
Company shall cause each Subsidiary Guarantor jointly and severally to agree) to
indemnify and hold harmless each Initial Purchaser, each Holder, each
Participating Broker-Dealer, each underwriter who participates in an offering of
Registrable Securities (each, an "Underwriter"), each Person, if any, who
controls any Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, and their respective affiliates, directors, officers,
partners, employees and agents, to the fullest extent lawful, as follows:
(i) from and against any and all loss, liability, claim,
damage, cost and expense whatsoever, as incurred, 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
thereto), including all documents incorporated or deemed to be
incorporated therein by reference, pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933
Act, or any 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
preliminary prospectus, form of prospectus or Prospectus (or any
amendment or supplement thereto) or any 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) from and against any and all loss, liability, claim,
damage, cost 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 Issuer and the
Guarantors; and
(iii) from and against any and all expense whatsoever, as
incurred (including, subject to Section 5(c) below, the fees and
disbursements of counsel chosen by any indemnified party), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, 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) above;
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage, cost or expense to the extent solely caused by any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to the Issuer
and the Guarantors by any Initial Purchaser, Holder, Participating Broker-Dealer
or Underwriter with respect to such Initial Purchaser, Holder, Participating
Broker-Dealer or Underwriter, 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).
(b) Each Holder, severally but not jointly, agrees to indemnify and
hold harmless the Issuer and the Guarantors, each the Initial Purchaser, each
Participating Broker-Dealer, each Underwriter and each other selling Holder and
each Person, if any, who controls the Issuer and the Guarantors, any Initial
Purchaser, any Underwriter, any Participating Broker-Dealer or any other selling
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act from and against any and all loss, liability, claim, damage, cost and
expense described in the indemnity contained in Section 5(a) hereof, as
incurred, arising out of or based upon any untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration Statement
(or any amendment thereto) or any Prospectus included therein (or any amendment
or supplement thereto), but only to the extent such loss, liability, claim,
damage, cost or expense is finally judicially determined by a court of competent
jurisdiction in a final, unappealable order to have resulted solely from an
untrue statement or omission or alleged untrue statement or omission contained
in or omitted from written information with respect to such Holder furnished to
the Issuer and the Guarantors by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); provided, however, that 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 Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure so to 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. Counsel to the respective
indemnified parties shall be selected as follows: (i) counsel to the Initial
Purchasers and all Persons, if any, who control the Initial Purchasers within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by the Issuer and Guarantors; (ii) counsel to the Issuer and
Guarantors, the directors, each of the officers who signed the Registration
Statement and all Persons, if any, who control the Issuer and Guarantors within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by the Issuer and Guarantors; (iii) counsel to the Holders (other than
the Initial Purchasers or Participating Broker-Dealers) and all Persons, if any,
who control any Holders (other than the Initial Purchasers or Participating
Broker-Dealers) within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall be selected by the Holders who held or hold, as the case
may be, a majority in aggregate principal amount of the Registrable Securities
held by all such Holders; (iv) counsel to the Underwriters of any particular
offering of Registrable Securities and all Persons, if any, who control any such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall be selected by such Underwriters; and (v) counsel to the
Participating Broker-Dealers (other than the Initial Purchasers) and all
Persons, if any, who control any such Participating Broker-Dealer within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
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selected by the Participating Broker-Dealers who held or hold, as the case may
be, a majority in aggregate principal amount of the Exchange Securities referred
to in Section 3(h) hereof held by all such Participating Broker-Dealers. 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 party or parties be liable
for (A) the fees and expenses of more than one counsel (in addition to any local
counsel) separate from the indemnifying parties' own counsel for the Initial
Purchasers and all other Persons referred to in clause (i) of this paragraph,
(B) the fees and expenses of more than one counsel (in addition to any local
counsel) separate from the indemnifying parties' own counsel for the Company and
all other Persons referred to in clause (ii) of this paragraph, (C) the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from the indemnifying parties' own counsel for all Holders (other than the
Initial Purchasers or Participating Broker-Dealers) and all other Persons
referred to in clause (iii) of this paragraph, (D) the fees and expenses of more
than one counsel (in addition to any local counsel) separate from the
indemnifying parties' own counsel for all Underwriters of any particular
offering of Registrable Securities and all other Persons referred to in clause
(iv) of this paragraph, and (E) the fees and expenses of more than one counsel
(in addition to any local counsel) separate from the indemnifying parties' own
counsel for all Participating Broker-Dealers (other than the Initial Purchasers)
and all other Persons referred to in clause (v) of this paragraph, in each case
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 (whether or not the indemnified parties are actual or
potential parties thereto), 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 fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(a)(ii) 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 in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
5(a)(ii) effected without its written consent if such indemnifying party (x)
reimburses such indemnified party in accordance with such request to the extent
that the indemnifying party in its judgment considers such request to be
reasonable and (y) provides written notice to the indemnified party stating the
reason it deems the unpaid balance unreasonable, in each case no later than 45
days after receipt by such indemnifying party of the aforesaid request from the
indemnified party.
(e) If the indemnification provided for 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 the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
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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 the
indemnified party or parties 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 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.
(f) The Issuer and the Guarantors, the Holders, and the Initial
Purchasers agree that it would not be just or equitable if contribution pursuant
to this Section 5 were determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable considerations
referred to in paragraph (e) above. 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 legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
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.
Notwithstanding the provisions of this Section 5, no Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
Registrable Securities sold by it were offered exceeds the amount of any damages
that such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter
has otherwise been required to pay by reason of 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, Holder, Participating Broker-Dealer or Underwriter 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, Holder, Participating
Broker-Dealer or Underwriter, as the case may be, and each director, general
partner, manager or managing member, as the case may be, of the Issuer and the
Guarantors, each officer of the Issuer and the Guarantors who signed the
Registrations Statement and each Person, if any, who controls the Issuer and the
Guarantors 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 Issuer and the
Guarantors. The respective obligations of the Initial Purchasers, Holders,
Participating Broker-Dealers and Underwriters to contribute pursuant to this
Section 5 are several in proportion to the principal amount of Securities
purchased by them and not joint.
The indemnity and contribution provisions contained in this Section 5
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
any Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter or any
Person controlling any Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, or by or on behalf of the Issuer and the Guarantors, their
officers, directors, general partner, managers or managing members, as the case
may be, or any Person controlling the Issuer and the Guarantors, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities or Exchange Securities pursuant to a Shelf Registration Statement.
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6. Miscellaneous.
(a) Rule 144 and Rule 144A. The Company agrees that, for so long as the
Company is subject to the reporting requirements of Section 13 or 15 of the 1934
Act, it will file all reports required to be filed by it under Section 13(a) or
15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder and if it ceases to be so required to file such reports, it will upon
the request of any Holder or beneficial owner of Registrable Securities (i) make
publicly available such information (including, without limitation, the
information specified in Rule 144(c)(2) under the 1933 Act) as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to
be delivered, promptly following a request by any Holder or beneficial owner of
Registrable Securities or any prospective purchaser or transferee designated by
such Holder or beneficial owner, such information (including, without
limitation, the information specified in Rule 144A(d)(4) under the 1933 Act) as
is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii)
take such further action that is reasonable in the circumstances, in each case
to the extent required from time to time to enable such Holder to sell its
Registrable Securities 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 request of any Holder or
beneficial owner of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Issuer and the Guarantors have not
entered into nor will the Issuer and the Guarantors on or after the date of this
Agreement enter into any agreement which conflicts with or is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof; provided that the Issuer and the
Guarantors will not be precluded from entering into any agreement after the date
hereof which may or does result, directly or indirectly, in the payment of
Additional Interest.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Issuer and Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities 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 Securities
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, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder or Participating Broker-Dealer (other than the Initial
Purchasers), at the most current address set forth on the records of the
registrar under the Indenture, (ii) if to the Initial Purchasers, to the
Representatives at the most current address given by the Representatives, to the
Issuer and Guarantors by means of a notice given in accordance with the
provisions of this Section 6(d), which address initially shall be the address
set forth in the Purchase Agreement; (iii) if to the Issuer and Guarantors,
initially at the 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) and (iv) if to any Underwriter, at the most current address
given by such Underwriter to the Issuer and Guarantors by means of a notice
given in accordance with the provisions of this Section 6(d), which address
initially shall be the address set forth in the applicable underwriting
agreement.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(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 Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, 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. Each Holder and Participating
Broker-Dealer shall be a third party beneficiary of the agreements made
hereunder between the Issuer and the 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 it deems such enforcement necessary or
advisable to protect its rights or the rights of other Holders hereunder. Each
Holder, by its acquisition of Securities, shall be deemed to have agreed to the
provisions of Section 5(b) hereof.
(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) Restriction on Resales. The Issuer or the Company will not resell
any Securities that have been acquired by either of them; the Issuer and the
Company will not permit any of their respective affiliates (as defined in Rule
144 under the 1933 Act) to resell, until a date at least 180 days after the
Closing Time, any Securities that have been acquired by any of them, and any
such resale shall be under circumstances that shall not require the registration
of the Securities under the 1933 Act.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TOLL BROTHERS FINANCE CORP.
By:
-------------------------------------
Name:
Title:
TOLL BROTHERS, INC.
By:
-------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BANC ONE CAPITAL MARKETS, INC
for themselves and as a Representative of the Initial
Purchasers
By:
--------------------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
for themselves and as a Representative of the Initial
Purchasers
By:
--------------------------------------------
Name:
Title:
SCHEDULE A
----------
Initial Purchaser Principal Amount of Notes
- ----------------- -------------------------
Citigroup Global Markets Inc. $142,500,000
Banc One Capital Markets, Inc. 142,500,000
Banc of America Securities LLC 3,000,000
Comerica Securities, Inc. 3,000,000
Credit Lyonnais Securities (USA) Inc. 3,000,000
SunTrust Capital Markets, Inc. 3,000,000
BNP Paribas Securities Corp. 1,000,000
The Royal Bank of Scotland plc 1,000,000
Wells Fargo Brokerage Services, LLC 1,000,000
------------
Total $300,000,000