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EXHIBIT 4.23
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 6, 2001
BY AND AMONG
PULTE HOMES, INC.
AND
SALOMON SMITH BARNEY INC.
AS THE INITIAL PURCHASER REPRESENTATIVE
FOR ITSELF AND THE INITIAL PURCHASERS
NAMED ON SCHEDULE A ATTACHED HERETO
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of August 6,
2001 by and among PULTE HOMES, INC., a Michigan corporation (the "Company"),
SALOMON SMITH BARNEY INC. (the "Initial Purchaser Representative") and each of
the other initial purchasers named on Schedule A attached hereto (together with
the Initial Purchaser Representative, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated August
1, 2001 by and between the Company and the Initial Purchaser Representative, as
representative of the Initial Purchasers (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $500,000,000
aggregate principal amount of the Company's Series A 7 % Senior Notes due 2011
(the "Securities"). 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 Company has 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.
"Closing Time" shall mean August 6, 2001.
"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 Company, 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.
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"Exchange Offer" shall mean the exchange offer by the Company 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 Series B 7 % Senior Notes due
2011 issued by the Company under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last date to
which interest has been paid or duly provided for on the Securities 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
thereon 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 October 24, 1995, as
amended and supplemented by the Indenture Supplement dated as of August 27,
1997, the Indenture Supplement dated as of March 20, 1998, the Indenture
Supplement dated as of January 31, 1999, two Indenture Supplements, each dated
as of April 3, 2000, the Indenture Supplement, dated as of February 21, 2001,
the Indenture Supplement dated July 31, 2001 and the Indenture Supplement dated
as of the date hereof, each between the Company and Bank One Trust Company,
National Association, as Trustee, 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).
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"Interest Accrual Date" means February 1, 2002.
"Initial Purchaser(s)" shall have the meaning set forth in the preamble
of this Agreement.
"Initial Purchaser Representative" shall have the meaning set forth in
the preamble of this Agreement.
"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.
"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
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144A) under the 1933 Act, (iii) such Securities shall have ceased to be
outstanding, (iv) such Securities 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 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 Company 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, 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 Company, (xi) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (xii) the expense of an annual audit,
and (xiii) in the case of an underwritten offering, any fees
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and disbursements of the underwriters customarily paid by issuers or sellers of
securities and the fees and expenses of any special experts retained by the
Company 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 Company shall pay
all fees and disbursements of such counsel.
"Registration Statement" shall mean any registration statement of the
Company 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.
"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 Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities or Private Exchange
Securities (if any), as the case may be, 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.
"Subsidiary Guarantor" shall mean any subsidiary of the Company that
guarantees the obligations of the Company 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.
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"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 Company shall (and, if required,
shall cause any then existing Subsidiary Guarantor to) (A) file with the SEC
within 120 days of the Closing Time an Exchange Offer Registration Statement
covering the offer by the Company to the Holders to exchange all of the
Registrable Securities for a like aggregate principal amount of Exchange
Securities, (B) use its commercially reasonable efforts to cause such Exchange
Offer Registration Statement to be declared effective by the SEC no later than
the 180th day after the Closing Time, (C) use its commercially reasonable
efforts to cause such Registration Statement to remain effective until the
closing of the Exchange Offer and (D) use its commercially reasonable efforts to
consummate the Exchange Offer no later than 30 days after the effective date of
the Exchange Offer Registration Statement. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company 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 Company shall:
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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, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Company shall, upon the
request of the Initial Purchasers, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to Initial
Purchasers in exchange for such Securities a like aggregate principal amount of
debt securities of the Company that are identical (except that such debt
securities 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 Company shall use its best efforts to have
the Private Exchange Securities bear the same CUSIP number as the Exchange
Securities and, if unable to do so, the Company 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.
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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
Company; and
(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 Company
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 the Company, 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 the use of Form S-4 or another appropriate form under the 1933 Act
available. To the extent permitted by law, the Company shall inform the Initial
Purchasers 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
Company, 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 Company is 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 180 days following the Closing Time or (B) the
Exchange Offer is not consummated within 30 days after effectiveness of the
Exchange Offer Registration Statement, (iii) if any Holder (other than an
Initial Purchaser holding
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Securities acquired directly from the Company) 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 any 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 Company), 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 Company shall (and
shall cause any then existing Subsidiary Guarantor), at its cost:
(A) as promptly as practicable, but no later than (a) the
180th day after the Closing Time or (b) the 30th 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;
(B) use its 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 210th day after the Closing
Time (or, in the case of a request by any Initial Purchaser pursuant to
clause (iv) above, within 30 days after such request). In the event
that the Company is required to file a Shelf Registration Statement
pursuant to clause (iii) or (iv) above, the Company shall file and use
its 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
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 its 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 Company (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
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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 Company shall not permit any securities other than Registrable
Securities to be included in any Shelf Registration Statement. The Company
further agrees, if necessary, 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 its 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 Company shall 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 Initial Purchaser Representative) to act as counsel for the
Holders of the 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 Company shall 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 Company shall be deemed not to have used its
commercially reasonable 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 the Company voluntarily takes 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
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that period unless (A) such action is required by applicable law or (B)
such action is taken by the Company in good faith and for valid
business reasons (but not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of
assets or a material corporate transaction or event so long as the
Company promptly complies with the notification requirements of Section
3(m) hereof, if applicable. Nothing in this paragraph shall prevent the
accrual of Additional Interest on any Securities or Exchange
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 Company 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
Company with its 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
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day following the Closing
Time, or
(iii) the Exchange offer is not consummated on or prior to the
30th 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 180th day following the Closing
Time or (B) the 30th day after the filing obligation arises, whichever
is later, or
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(v) if required, a Shelf Registration Statement is not
declared effective on or prior to the 210th 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)(B) 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 180-day period in
the case of clause (ii) above, immediately following such 30-day period
in the case of clause (iii) above, immediately following any such
180-day period or 30-day period, whichever ends later, in the case of
clause (iv) above, immediately following any such 210-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, or 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
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three-quarters of one percent (0.75%) per annum. Upon the filing of the
Exchange offer Registration Statement after the 120-day period
described in clause (i) above, the effectiveness of the Exchange Offer
Registration Statement after the 180-day period described in clause
(ii) above, the consummation of the Exchange Offer after the 30-day
period described in clause (iii) above, the filing of the Shelf
Registration Statement after the 180-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 210-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 Company is 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 begin to accrue
pursuant to the foregoing provisions.
The Company shall 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 February
1 and August 1 (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 the
January 15 or July 15, 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 365-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, the Initial Purchasers holding unsold
allotments of
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Securities acquired from the Company are not eligible to participate in the
Exchange Offer.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2(a) and
2(b) hereof may result in material irreparable injury to the Initial Purchasers,
the Holders or the Participating Broker-Dealers for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, any Initial Purchaser, any
Holder and any Participating Broker-Dealer may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 2(a)
and 2(b).
(g) Hold-Back Agreements. The Company agrees that it will not effect
any public or private sale or distribution (including a sale pursuant to
Regulation D under the 1933 Act) of any securities the same as or similar to
those covered by a Registration Statement filed pursuant to Section 2 hereof, or
any securities convertible into or exchangeable or exercisable for such
securities, during the 10 days prior to, and during the 90-day period beginning
on, (A) the effective date of any Registration Statement filed pursuant to
Section 2 hereof, unless the Majority Holders to be included in such
Registration Statement consent, or (B) the commencement of an underwritten
public distribution of Registrable Securities, if the managing underwriter
thereof so requests.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall (and shall, as applicable, cause any then
existing Subsidiary Guarantor 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 Company, (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 of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith, and use its 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 Company shall,
if requested, furnish to 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
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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 Company shall not 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 its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
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 its 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 its 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 Company
shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(e) or (ii) take any
action which would subject it to general service of process or taxation
in any such jurisdiction if it is not then so subject;
(f) use its 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 Company will 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 Company 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 Company 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
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Prospectus and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement would be
appropriate. Without limitation to any other provisions of this
Agreement, the Company agrees 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);
(h) (A) 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 Initial
Purchaser Representative) 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 Company 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 Company 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
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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."
(B) to the extent any Notifying Broker-Dealer participates in
the Exchange Offer, (i) the Company shall use its 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 Company will
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 its 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 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;
(C) to the extent any Notifying Broker-Dealer participates in
the Exchange Offer, the Company shall use its best efforts to cause to
be delivered at the request of an entity representing such Notifying
Broker-Dealer (which entity shall be the Initial Purchaser
Representative, unless it elects not to act as such representative), 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
(D) the Company 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 180 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 Company to, and shall not, deliver such Prospectus
after such period in connection with resales contemplated by this
Section 3;
(i) (i) in the case of an Exchange Offer, furnish counsel for
the Initial Purchasers and (ii) 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
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Registration Statement or Prospectus or for additional information;
(j) use its best effort 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 its 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 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 Company
agrees to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until the Company
has amended or supplemented the Prospectus to correct such misstatement
or omission. At such time as such public disclosure is otherwise made
or the Company determines that such disclosure is not necessary, in
each case to correct any misstatement of a material fact or to include
any omitted material fact, the Company agrees promptly to notify each
Holder of such determination and to furnish each Holder such number of
copies of the Prospectus, as amended or supplemented, as such Holder
may reasonably request;
(n) obtain CUSIP numbers for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and 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;
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(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 its
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 Company to
effect not more than one underwritten registration and, in connection
with such underwritten registration, the Company shall 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 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
supplements thereto and all documents incorporated or deemed
to be incorporated by reference therein from 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 its 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
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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 Company, 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 Sections 3(n)(ii) and 3(n)(v) 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 Company
shall provide written notice to the Holders of all Registrable Securities of
such underwritten offering at least 30 days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify a
date, which shall be no earlier than 15 days following the date of such notice,
by which such Holder must inform the Company of its intent to participate in
such underwritten offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(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.
(r) comply with all applicable rules and regulations of the
SEC and make generally
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available to the security holders of the Company 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 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 Company
after the effective date of a Registration Statement, which
Registration Statement shall cover said 12-month periods;
(s) upon consummation of an Exchange Offer or sale of Private
Exchange Securities, obtain an opinion of counsel to the Company (in
form, scope and substance reasonably satisfactory to the Initial
Purchaser Representative), 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
Company and the existing Subsidiary 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 Company and the existing Subsidiary Guarantors, enforceable
against the Company and the existing Subsidiary 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 Company (or to such other Person as
directed by the Company) in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be, the Company shall
mark, or cause to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled 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;
(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 Company
reasonably requested by any such Persons, and cause the respective
officers, directors, employees, and any other agents of the Company 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 Salomon Smith Barney Inc. and on
behalf of the other parties by one counsel designated by the holders of
a majority of the Registrable Securities, and
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provided further that any such records, documents, properties and such
information that is designated in writing by the Company, 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 Company 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 Company 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 Company to
allow the Company at its 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 Initial Purchasers, and make
such changes in any such documents prior to the filing thereof as the
Initial Purchasers or their counsel may reasonably request; (ii) in the
case of a Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Securities, to the Initial Purchasers, to the
underwriter or underwriters, of an underwritten offering of Registrable
Securities, and to counsel for any such Holders, Initial Purchasers or
underwriters, and make such changes in any such document prior to the
filing thereof as the Holders of Registrable Securities, the Initial
Purchasers, any such underwriter or underwriters or any of their
respective counsel may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
documents as shall be reasonably requested by the Holders of
Registrable Securities, the Initial Purchasers on behalf of such
Holders or any underwriter, and shall not at any time make any filing
of any such document of which such Holders, the Initial Purchasers on
behalf of such Holders, their counsel or any underwriter shall not have
previously been advised and furnished a copy or to which such Holders,
the Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall reasonably object within a reasonable
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time period;
(w) use its best efforts to cause all Registrable Securities
to be listed on any securities exchange on which similar debt
securities issued by the Company are then listed if requested by the
Majority Holders or by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;
(x) use its 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 its best efforts to comply with all
applicable rules and regulations of the SEC and, with respect to each
Registration Statement and each post-effective amendment, if any,
thereto and each filing by the Company of an annual report on Form
10-K, make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least twelve months
which shall satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 thereunder; 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 its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time 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 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 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 Company, such Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in its possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
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Nothing in this paragraph shall prevent the accrual of Additional Interest on
any Securities or Exchange Securities.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall be deemed to have used its 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 Company shall use
its 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
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
Company. 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 Company agrees (and 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
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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 Company; 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; 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 Company 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 Company, each Initial Purchaser, each Participating
Broker-Dealer, each Underwriter and each other selling Holder and each Person,
if any, who controls the Company, any Initial Purchaser, any Underwriter, any
Participating Broker-Dealer or any other selling Holder within the meaning
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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 Company 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 Merrill Lynch; (ii) counsel to the Company, its directors, each of
its officers who signed the Registration Statement and all Persons, if any, who
control the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall be selected by the Company; (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 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
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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,
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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, 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 Company, 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 of the
Company, each officer of the Company who signed the Registrations Statement and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. 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
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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 Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities or Exchange Securities
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file 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, that 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 Company has not entered into nor
will the Company on or after the date of this Agreement enter into any agreement
which 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 Company 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. The rights granted to the Holders hereunder do
not and will not in any way conflict with and are not and will not be
inconsistent with the rights granted to the holders of any of the Company's
other issued and outstanding securities under any other agreements entered into
by the Company or any of its subsidiaries.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions
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of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has 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, at the most
current address given by the Initial Purchasers to the Company 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 Company, 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
Company 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.
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 Company, on the one hand, and
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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. If the Company or any of its subsidiaries
or affiliates (as defined in Rule 144 under the 1933 Act) shall redeem, purchase
or otherwise acquire any Registrable Security or any Exchange Security which is
a "restricted security" within the meaning of Rule 144 under the 1933 Act, the
Company will deliver or cause to be delivered such Registrable Security or
Exchange Security, as the case may be, to the Trustee for cancellation and
neither the Company nor any of its subsidiaries or affiliates will hold or
resell such Registrable Security or Exchange Security or issue any new Security
or Exchange Security to replace the same.
(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.
PULTE HOMES, INC.
By:
--------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
SALOMON SMITH BARNEY INC.
By:
-------------------------
Authorized Signatory
For itself and as Initial Purchaser Representative of the other Initial
Purchasers named on Schedule A attached hereto.
35
Schedule A
INITIAL PURCHASERS
Salomon Smith Barney Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
PNC Capital Markets, Inc.
SunTrust Capital Markets, Inc.