EXHIBIT 10.2
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 5, 1998
Among
ALLIANCE LAUNDRY SYSTEMS LLC
ALLIANCE LAUNDRY CORPORATION
ALLIANCE LAUNDRY HOLDINGS LLC
and
LEHMAN BROTHERS INC.
and
CREDIT SUISSE FIRST BOSTON CORPORATION
as Initial Purchasers
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TABLE OF CONTENTS
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Page
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1. Definitions.......................................... 1
2. Securities Subject to This Agreement................. 3
3. Registered Exchange Offer............................ 3
4. Shelf Registration................................... 5
5. Liquidated Damages................................... 6
6. Registration Procedures.............................. 7
7. Registration Expenses................................ 14
8. Indemnification and Contribution..................... 15
9. Rule 144A............................................ 18
10. Participation in Underwritten
Registrations....................................... 18
11. Selection of Underwriters............................ 18
12. Miscellaneous........................................ 18
i
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 5, 1998 by and among Alliance Laundry Systems LLC, a
Delaware limited liability company (the "Company"), Alliance Laundry
Corporation, a Delaware corporation ("ALC" and, together with the Company, the
"Issuers"), Alliance Laundry Holdings LLC, a Delaware limited liability company
(the "Parent"), and Lehman Brothers Inc. and Credit Suisse First Boston
Corporation (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of April 29, 1998, among the Issuers, the Parent and the
Initial Purchasers (the "Purchase Agreement"), which provides for the sale by
the Issuers to the Initial Purchasers of $110,000,000 aggregate principal amount
of the Issuers' 9 5/8% Senior Subordinated Notes due 2008 (the "Notes"). The
Notes will be guaranteed on a senior subordinated basis by a guarantee (the
"Guarantee") by the Parent and each newly acquired or created domestic
subsidiary. The Notes and the Guarantee are collectively referred to herein as
the "Securities." In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers and the Parent have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and their direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligations to purchase the Securities under the Purchase Agreement. Capitalized
terms used but not specifically defined herein have the respective meanings
ascribed thereto in the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the
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Exchange Act.
Closing Date: The date on which the Securities were sold.
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Commission: The Securities and Exchange Commission.
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Consummate: A registered Exchange Offer shall be deemed
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"Consummated" for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Securities Act of the Exchange Offer
Registration Statement relating to the New Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to Section 3(b)
hereof and (iii) the delivery by the Issuers of the New Securities in the
same aggregate principal amount as the aggregate principal amount of
Transfer Restricted Securities that were validly tendered by Holders
thereof pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5(a) hereof.
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Event Date: As defined in Section 5(b) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by the Issuers and the Parent
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under the Securities Act of the New Securities pursuant to a Registration
Statement pursuant to which the Issuers offer the Holders of all
outstanding Transfer Restricted Securities the opportunity
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to exchange all such outstanding Transfer Restricted Securities held by
such Holders for New Securities in an aggregate amount equal to the
aggregate amount of the Transfer Restricted Securities tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
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Statement relating to the Exchange Offer, including the Prospectus which
forms a part thereof.
Exempt Resales: The transactions in which the Initial Purchasers
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propose to sell the Securities to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Securities Act, and to
certain non-U.S. persons.
Holders: As defined in Section 2(b) hereof.
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Indenture: The Indenture, dated as of May 5, 1998, between the
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Issuers and United States Trust Company of New York, as trustee (the
"Trustee"), pursuant to which the Securities are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
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Liquidated Damages: As defined in Section 5(a) hereof.
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NASD: National Association of Securities Dealers, Inc.
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New Securities: The Securities to be issued pursuant to the
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Indenture in the Exchange Offer.
Participant: As defined in Section 8(a) hereof.
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Person: An individual, partnership, corporation, limited
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liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement,
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as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5(a) hereof.
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Registration Statement: Any registration statement of the
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Issuers and the Parent relating to (a) an offering of New Securities
pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement, in
either case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits
and material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
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Shelf Filing Deadline: As defined in Section 4 hereof.
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Shelf Registration Statement: As defined in Section 4 hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-
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77bbbb), as amended.
Transfer Restricted Securities: Each Security, until the
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earliest to occur of (a) the date on which such Security has been exchanged
by a person other than a Broker-Dealer for a New Security in the Exchange
Offer, (b) following the exchange by a Broker-Dealer in the Exchange Offer
of a Security for a New Security, the date on which such New Security is
sold to a purchaser who receives from such Broker-Dealer on or prior to the
date of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (c) the date on which such Security has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (d) the date on which
such Security is eligible to be distributed to the public pursuant to Rule
144 under the Securities Act.
Underwritten Registration or Underwritten Offering: A
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registration in which securities of the Issuers are sold to an underwriter
for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to
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the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
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deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with) or one of the events set forth
in Section 4(a)(ii) has occurred, the Issuers and the Parent shall (i)
cause to be filed with the Commission promptly after the Closing Date, but
in no event later than 90 days after the Closing Date, a Registration
Statement under the Securities Act relating to the New Securities and the
Exchange Offer, (ii) use their respective best efforts to cause such
Registration Statement to become effective no later than 180 days after the
Closing Date, (iii) in connection with the foregoing, file (A) all pre-
effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and qualification of the New
Securities to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) unless the
Exchange Offer would not be permitted by applicable law or Commission
policy, the Issuers will commence the Exchange Offer and use their best
efforts to issue on or prior to 30 business days after the date on which
such Registration Statement was declared effective by the Commission, New
Securities
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in exchange for all Securities tendered prior thereto in the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the New Securities to be offered in exchange for the
Transfer Restricted Securities and to permit resales of New Securities held
by Broker-Dealers as contemplated by Section 3(c) below. The 90, 180 and 30
business day periods referred to in (i), (ii) and (iv) of this Section 3(a)
shall not include any period during which the Issuers are pursuing a
Commission ruling pursuant to Section 6(a)(i) below.
(b) The Issuers and the Parent shall use their respective best
efforts to cause the Exchange Offer Registration Statement to be effective
continuously and shall keep the Exchange Offer open for a period of not
less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that
in no event shall such period be less than 20 business days. The Issuers
and the Parent shall cause the Exchange Offer to comply in all material
respects with all applicable federal and state securities laws. No
securities other than the New Securities shall be included in the Exchange
Offer Registration Statement. The Issuers and the Parent shall use their
best efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Issuers shall indicate in a "Plan of Distribution"
section contained in the Prospectus contained in the Exchange Offer
Registration Statement that any Broker-Dealer who holds Securities that are
Transfer Restricted Securities and that were acquired for its own account
as a result of market-making activities or other trading activities (other
than Transfer Restricted Securities acquired directly from the Issuers),
may exchange such Securities pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of
the Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the
New Securities received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-
Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of New Securities held by any such
Broker-Dealer except to the extent required by the Commission as a result
of a change in policy announced after the date of this Agreement.
The Issuers and the Parent shall use their respective best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for resales of New
Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the date on which the Exchange Offer
Registration Statement is declared effective.
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The Issuers and the Parent shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at any
time during such 180-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Issuers and the Parent are
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not required to file an Exchange Offer Registration Statement or to
consummate the Exchange Offer because the Exchange Offer is not permitted
by applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with) or (ii) if any Holder of
Transfer Restricted Securities that is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) or an institutional
"accredited investor" (as defined in Rule 501(A)(1), (2), (3) or (7) under
the Securities Act) shall notify the Issuers at least 20 business days
prior to the Consummation of the Exchange Offer (A) that such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer or (B) that such Holder may not resell the New Securities
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by
such Holder or (C) that such Holder is a Broker-Dealer and holds Securities
acquired directly from the Issuers or one of its affiliates, then the
Issuers and the Parent shall in lieu of, or in the event of (ii) above, in
addition to, effecting the registration of the New Securities pursuant to
the Exchange Offer Registration Statement use their respective best efforts
to:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement"), on or prior to the earlier to occur of (1)
the 30th day after the date on which the Issuers determine that they
are not required to file the Exchange Offer Registration Statement or
(2) the 30th day after the date on which the Issuers receive notice
from a Holder of Transfer Restricted Securities as contemplated by
clause (ii) above (such earlier date being the "Shelf Filing
Deadline"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 90th day after the Shelf
Filing Deadline.
The Issuers and the Parent shall use their respective best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to
the extent necessary to ensure that it is available for resales of
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a) and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules
and regulations of the Commission as announced from time to time, for a
period ending on the second anniversary of the Closing Date.
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(b) Provision by Holders of Certain Information in Connection
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with the Shelf Registration Statement. No Holder of Transfer Restricted
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Securities may include any of its Transfer Restricted Securities in any
Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Issuers in writing, within 20 business days
after receipt of a request therefor, such information as the Issuers may
reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No
Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 5 hereof unless and until such Holder shall
have used its best efforts to provide all such reasonably requested
information. Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Issuers all information
required to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading.
5. Liquidated Damages
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (a) through (d), a "Registration Default"), additional
cash interest ("Liquidated Damages") shall accrue to each Holder of the
Securities commencing upon the occurrence of such Registration Default in an
amount equal to $.05 per week per $1,000 principal amount of Securities held by
such Holder. The amount of Liquidated Damages will increase by an additional
$.05 per week per $1,000 principal amount of Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of Liquidated Damages for all Registration Defaults of $.50 per
week per $1,000 principal amount of Securities. All accrued Liquidated Damages
shall be paid to Holders by the Issuers in the same manner as interest is paid
pursuant to the Indenture. Following the cure of all Registration Defaults
relating to any particular Transfer Restricted Securities, the accrual of
Liquidated Damages with respect to such Transfer Restricted Securities will
cease.
All obligations of the Issuers set forth in the preceding paragraph
that have accrued and are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Transfer Restricted Security shall have been satisfied in full.
(b) The Issuers shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Liquidated Damages shall be
paid by depositing Liquidated Damages with the Trustee, in trust, for the
benefit of the Holders of the Securities, on or before the applicable Interest
Payment Date (whether or not any payment other than Liquidated Damages is
payable on such Securities), in immediately available funds in sums sufficient
to pay the Liquidated Damages then due
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to such Holders. Each obligation to pay Liquidated Damages shall be deemed to
accrue from the applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
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the Exchange Offer, the Issuers and the Parent shall comply with all of the
provisions of Section 6(c) below, shall use their best efforts to effect
such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Issuers, there
is a question as to whether the Exchange Offer is permitted by
applicable law, the Issuers hereby agree to seek a no-action letter
or other favorable decision from the Commission allowing the Issuers
to Consummate an Exchange Offer for such Securities. The Issuers
hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The
Issuers hereby agree, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff
an analysis prepared by counsel to the Issuers setting forth the
legal bases, if any, upon which such counsel has concluded that such
an Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Issuers,
prior to the Consummation thereof, a written representation to the
Issuers (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Issuers, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement
or understanding with any person to participate in, a distribution of
the New Securities to be issued in the Exchange Offer and (C) it is
acquiring the New Securities in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Issuers' and the Parent's preparations for
the Exchange Offer. Each Holder hereby acknowledges and agrees that
any Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991)
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and Exxon Capital Holdings Corporation (available May 13, 1988), as
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interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including Brown & Wood
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LLP (available February 7, 1997), and any no-action letter obtained
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pursuant to clause (i) above) and (2) must comply with the
registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of New Securities
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obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Issuers.
(iii) Prior to the effectiveness of the Exchange Offer
Registration Statement, the Issuers shall provide a supplemental
letter to the Commission (A) stating that the Issuers and the Parent
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation
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(available May 13, 1988), Morgan Stanley and Co., Inc. (available
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June 5, 1991), Brown & Wood LLP (available February 7, 1997) and, if
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applicable, any no-action letter obtained pursuant to clause (i)
above and (B) including a representation that the Issuers have not
entered into any arrangement or understanding with any Person to
distribute the New Securities to be received in the Exchange Offer
and that, to the best of the Issuers' information and belief, each
Holder participating in the Exchange Offer is acquiring the New
Securities in its ordinary course of business and has no arrangement
or understanding with any Person to participate in the distribution
of the New Securities received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
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Registration Statement, the Issuers and the Parent shall comply with all
the provisions of Section 6(c) below and shall use their best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Issuers and the Parent will
as expeditiously as possible prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration
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Statement and any Prospectus required by this Agreement to permit the sale
or resale of Transfer Restricted Securities (including, without limitation,
any Registration Statement and the related Prospectus required to permit
resales of Securities by Broker-Dealers), the Issuers and the Parent shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any
such Registration Statement or the Prospectus contained therein (A)
to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Issuers and the
Parent shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A)
or (B), use their best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus
to become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep
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the Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) in the case of a Shelf Registration, advise the
underwriter(s), if any, and selling Holders promptly and, if requested by
such Persons, to confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and,
with respect to any Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Securities Act or
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, or (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Issuers
and the Parent shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) in the case of a Shelf Registration, furnish to each of the
selling or exchanging Holders and each of the underwriter(s), if any,
before filing with the Commission, copies of any Registration Statement or
any Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement, if any), which documents will be subject to the review of such
Holders and underwriter(s), if any, for a period of at least five business
days, and the Issuers and the Parent will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which selling Holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by
such Registration Statement or the underwriter(s), if any, shall reasonably
object within five business days after the receipt thereof. A selling
Holder or
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underwriter, if any, shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains a material misstatement or
omission;
(v) in the case of a Shelf Registration, promptly prior to the
filing of any document that is to be incorporated by reference into a
Registration Statement or Prospectus, if any, provide copies of such
document to the selling Holders and to the underwriter(s), if any, make the
Issuers' and the Parent's representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such selling
Holders or underwriter(s), if any, reasonably may request;
(vi) in the case of a Shelf Registration, make available at
reasonable times during normal business hours for inspection by the selling
Holders, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Issuers and
the Parent reasonably requested by any such Holder, underwriter, attorney
or accountant in connection with such Registration Statement and cause the
Issuers' and the Parent's officers, directors, managers and employees to
supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such Registration
Statement subsequent to the filing thereof and prior to its effectiveness;
(vii) in the case of a Shelf Registration, if requested by
any selling Holders or the underwriter(s), if any, promptly incorporate in
any Registration Statement or Prospectus, pursuant to a supplement or post-
effective amendment if necessary, such information as such selling Holders
and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be
sold in such offering, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Issuers are notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered
by the Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Securities covered thereby or the underwriter(s), if
any;
(ix) in the case of a Shelf Registration, furnish to each selling
Holder and each of the underwriter(s), if any, without charge, at least one
copy of the Registration Statement, as first filed with the Commission, and
of each amendment thereto, including all documents incorporated by
reference therein, if any, and all exhibits (including exhibits
incorporated therein by reference);
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(x) in the case of a Shelf Registration, deliver to each selling
Holder and each of the underwriter(s), if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; the
Issuers and the Parent hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) in the case of a Shelf Registration, enter into such
agreements (including an underwriting agreement) and make such
representations and warranties which, in the opinion of each of the
Issuers' and the Parent, are reasonably required, and take all such other
reasonable actions in connection therewith, in order to expedite or
facilitate the disposition of the Transfer Restricted Securities pursuant
to any Registration Statement contemplated by this Agreement, all to such
extent as may be reasonably requested by any purchaser or by any Holder of
Transfer Restricted Securities or underwriter, if any, in connection with
any sale or resale pursuant to any Registration Statement contemplated by
this Agreement, provided, that such sale or resale of Transfer Restricted
Securities is for at least $25.0 million principal amount, and in
connection with an Underwritten Registration, the Issuers and the Parent
shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may request
and as are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of the effectiveness of the
Shelf Registration Statement, signed by (y) the Chairman of the
Board, its President or a Vice President and (z) the Chief
Financial Officer of the Issuers and the Parent, confirming, as
of the date thereof, such matters as such parties may
reasonably request;
(2) an opinion, dated the date of the effectiveness of the
Shelf Registration Statement, of counsel for the Issuers,
covering such matters as such parties may reasonably request,
and in any event including a statement to the effect that such
counsel has participated in conferences with officers and other
representatives of the Issuers and the Parent, representatives
of the independent public accountants for the Issuers, the
Initial Purchasers' representatives and the Initial Purchasers'
counsel in connection with the preparation of such Registration
Statement and the related Prospectus and have considered the
matters required to be stated therein and the statements
contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such
statements, and that such counsel advises that, on the basis of
the foregoing (relying as to materiality to a large extent upon
facts provided to such counsel by officers and other
representatives of the Issuers and the Parent and
12
without independent check or verification), no facts came to
such counsel's attention that caused such counsel to believe
that the applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto
became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date, contained an untrue
statement of a material fact or omitted 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. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy, completeness
or fairness of the financial statements, notes and schedules
and other financial and statistical data included in any
Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated the date of the
effectiveness of the Shelf Registration Statement, from the
Issuers' independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters by underwriters in connection with primary underwritten
offerings.
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause (A)
above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuers and the Parent
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Issuers
and the Parent contemplated in clause (A)(1) above cease to be true and
correct, the Issuers and the Parent shall so advise the Initial Purchasers
and the underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing.
(xii) in the case of a Shelf Registration, prior to any
public offering of Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel
in connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may reasonably
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the
13
Shelf Registration Statement; provided, however, that neither Issuer shall
be required to register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it to the service
of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xiii) in the case of a Shelf Registration, shall issue,
upon the request of any Holder of Securities covered by the Shelf
Registration Statement, New Securities in the same amount as the Securities
surrendered to the Issuers by such Holder in exchange therefor or being
sold by such Holder, such New Securities to be registered in the name of
such Holder or in the name of the purchaser(s) of such Securities, as the
case may be; in return, the Securities held by such Holder shall be
surrendered to the Issuers for cancellation;
(xiv) in the case of a Shelf Registration, cooperate with the
selling Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xv) use their best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xvii) obtain CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide certificates for the Transfer Restricted Securities;
(xviii) 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 (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their best efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities
as may be necessary to enable the Holders selling Transfer Restricted
Securities to consummate the disposition of such Transfer Restricted
Securities; provided, however, that neither Issuer shall be required to
14
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to service of process
in suits or to taxation, other than as to matters and transactions relating
to the Registration Statement, in any jurisdiction where it is not now so
subject;
(xix) otherwise use their best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their security holders, as soon as practicable, a consolidated
earning statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or (B) if not
sold to underwriters in such an offering, beginning with the first month of
the respective Issuers' first fiscal quarter commencing after the effective
date of the Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement, and, in connection therewith, cooperate with the Trustee
and the Holders of Securities to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of the TIA, and execute and use their best efforts to cause the
Trustee to execute all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Issuers of the existence
of any fact of the kind described in Section 6(c)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing
(the "Advice") by the Issuers that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings
that are incorporated by reference in the Prospectus. If so directed by
the Issuers, each Holder will deliver to the Issuers (at the Issuers'
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted Securities
that was current at the time of receipt of such notice. In the event the
Issuers shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof or shall have received the Advice.
7. Registration Expenses.
15
All expenses incident to the Issuers' and the Parent's
performance of or compliance with this Agreement will be borne by the
Issuers and the Parent, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and
filing fees and expenses (including filings made by any purchaser or Holder
with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its one counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing certificates for the New
Securities to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Issuers and
the Parent; (v) all application and filing fees in connection with listing
Securities on a national securities exchange or automated quotation system,
and the obtaining of a rating of the Securities, if applicable; and (vi)
all fees and disbursements of independent certified public accountants of
the Issuers (including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Issuers and the Parent will, in any event, bear their
internal expenses (including, without limitation, all salaries and expenses
of their officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Issuers or the Parent.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in connection
with any delivery of a Prospectus contained in an Exchange Offer Registration
Statement by any participating Broker-Dealer or Initial Purchaser, as
applicable, who seeks to sell New Securities, the Issuers and the Parent shall
indemnify and hold harmless each Holder of Transfer Restricted Securities
included within any such Shelf Registration Statement and each participating
Broker-Dealer or Initial Purchaser selling New Securities, and each person, if
any, who controls any such person within the meaning of Section 15 of the
Securities Act (each, a "Participant") from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Securities) to which such Participant or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Participant promptly upon demand for any legal expenses of one counsel (in
addition to local counsel, if necessary) or other expenses reasonably incurred
by such Participant in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that (i) the Issuers and the Parent
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any such Registration Statement or any prospectus forming part thereof or in any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Issuers or the Parent by or on behalf of any
Participant specifically for inclusion therein; and provided further that as to
any preliminary Prospectus, the indemnity agreement contained in this Section
8(a) shall not
16
inure to the benefit of any such Participant or any controlling person of such
Participant on account of any loss, claim, damage, liability or action arising
from the sale of the New Securities to any person by that Participant if (i)
that Participant failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act and (ii) the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
preliminary Prospectus was corrected in the Prospectus, unless, in each case,
such failure resulted from non-compliance by the Issuers or the Parent with
Section 6(c). The foregoing indemnity agreement is in addition to any liability
which the Issuers or the Parent may otherwise have to any Participant or to any
controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall indemnify and
hold harmless the Issuers, the Parent, their respective directors, officers,
employees or agents and each person, if any, who controls the Issuers within the
meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to
which the Issuers, the Parent or any such director, officer, employees or agents
or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Issuers or the Parent by or on behalf of
that Participant specifically for inclusion herein, and shall reimburse the
Issuers, the Parent and any such director, officer, employee or agent or
controlling person for any legal or other expenses reasonably incurred by the
Issuers, the Parent or any such director, officer, employee or agent or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Participant may otherwise have to the Issuers, the Parent or
any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall have notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the indemnified party shall have
the right to employ separate counsel to represent jointly the indemnified party
and those other Participants and their respective officers, employees and
controlling persons who may be subject
17
to liability arising out of any claim in respect of which indemnity may be
sought by the Participants against the indemnifying party under this Section 8
if, in the reasonable judgment of the indemnified party it is advisable for the
indemnified party and those Participants, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
customary fees and expenses of such separate counsel shall be paid by the
indemnifying party. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to local counsel). Each
indemnified party, as a condition of the indemnity agreements contained in
Section 8, shall use its best efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the Issuers
and the Parent on the one hand and the Participants on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to 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 the Issuers
and the Parent or the Participants, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Issuers, the Parent and the Participants agree that
it would not be just and equitable if contributions pursuant to this Section
8(d) were to be determined by pro rata allocation (even if the Participants were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), no Participant
shall be required to contribute any amount in excess of the amount by which
proceeds received by such Participant from an offering of the Notes exceeds the
amount of any damages which such Participant has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligations to contribute as provided in
this Section 8(d) are several and not joint.
18
9. Rule 144A.
Each of the Issuers hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Issuers.
12. Miscellaneous.
(a) Remedies. The Issuers and the Parent agree that monetary
--------
damages (including Liquidated Damages) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers and the Parent will
--------------------------
not on or after the date of this Agreement enter into any agreement with
respect to their securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions
hereof. The Issuers and the Parent have not previously entered into any
agreement granting any registration rights with respect to their securities
to any Person. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Issuers' securities under any agreement in effect on the
date hereof.
(c) Adjustments Affecting the Securities. The Issuers and the
------------------------------------
Parent will not take any action, or permit any change to occur, with
respect to Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer unless such action
or change is required by applicable law.
19
(d) Amendments and Waivers. The provisions of this Agreement may
----------------------
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Issuers
and the Parent have obtained the written consent of Holders of a majority
of the outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does
not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for
-------
or permitted hereunder shall be made in writing by hand-delivery, first-
class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address of such Holder
maintained by the Registrar under the Indenture;
(ii) if to the Issuers:
Alliance Laundry Systems LLC
Alliance Laundry Corporation
Shepard Street
Ripon, Wisconsin 54971
Facsimile: (920) 748-4429
With a copy to:
Lance C. Balk
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, NY 10022
Facsimile: (212) 446-4900; and
(iii) if to the Parent:
Raytheon Commercial Laundry LLC
Shepard Street
Ripon, Wisconsin 54971
Facsimile: (920) 748-4429
20
With a copy to:
Lance C. Balk
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, NY 10022
Facsimile: (212) 446-4900
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 answered back, if telexed; when receipt 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.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities from such
Holder.
(g) Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(j) 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.
(k) Entire Agreement. This Agreement together with the other
----------------
transaction documents is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
21
warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuers with
respect to the Transfer Restricted Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
(l) Required Consents. Whenever the consent or approval of
-----------------
Holders of a specified percentage of Transfer Restricted Securities is
required hereunder, Transfer Restricted Securities held by the Issuers or
its affiliates (as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALLIANCE LAUNDRY SYSTEMS LLC
By:
---------------------------------
Name:
Title:
ALLIANCE LAUNDRY CORPORATION
By:
---------------------------------
Name:
Title:
ALLIANCE LAUNDRY HOLDINGS LLC
By:
---------------------------------
Name:
Title:
Accepted as of the date thereof:
LEHMAN BROTHERS INC.,
on behalf of the Initial Purchasers
By:
---------------------------------
Name:
Title: