Exhibit 4.2
EXECUTION COPY
JLG INDUSTRIES, INC.
$175,000,000
8 3/8 % SENIOR SUBORDINATED NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
June 17, 2002
Wachovia Securities, Inc.
Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.
BMO Nesbitt Burns Corp.
Credit Lyonnais Securities (USA) Inc.
As Initial Purchasers under the Purchase Agreement
c/o Wachovia Securities, Inc.
Wachovia Center
301 South College Street
Charlotte, NC 28288
Ladies and Gentlemen:
This Registration Rights Agreement (the "Agreement") is dated June
17, 2002, by and among JLG Industries, Inc., a Pennsylvania corporation (the
"Company"), the Note Guarantors listed on the signature pages hereto (the
"Guarantors"), Wachovia Securities, Inc., Credit Suisse First Boston
Corporation, J.P. Morgan Securities Inc., Banc One Capital Markets, Inc., BNY
Capital Markets, Inc., BMO Nesbitt Burns Corp., and Credit Lyonnais Securities
(USA) Inc. (the "Initial Purchasers").
This Agreement is being entered into in connection with a certain
note purchase agreement, dated June 12, 2002, by and among the Company, the
Guarantors, and the Initial Purchasers (the "Purchase Agreement"), which
provides for the issuance and sale by the Company to the Initial Purchasers of
$175,000,000 aggregate principal amount of the Company's 8 3/8% Senior
Subordinated Notes Due 2012 (the "Notes") to be unconditionally guaranteed on a
general unsecured senior subordinated basis by the Guarantors. In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
and the Guarantors 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. The parties hereby agree as follows:
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1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder. "Additional Interest"
has the meaning set forth in Section 4 hereto.
"Affiliate" means, with respect to any specified person, any other
person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any other
day which is a legal holiday under the laws of New York, New York or is a day
on which banking institutions therein located are authorized or required by law
or other governmental action to close.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange Offer, the
occurrence of (a) the filing and effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Exchange Notes to be issued in the
Registered Exchange Offer, (b) the maintenance of such Registration Statement
continuously effective and the keeping of the Registered Exchange Offer open for
a period not less than the minimum period required pursuant to Section 2(c)(ii)
hereof, (c) the Company's acceptance for exchange of all Transfer Restricted
Notes duly tendered and not validly withdrawn pursuant to the Registered
Exchange Offer and (d) the delivery of Exchange Notes by the Company to the
registrar under the Indenture in the same aggregate principal amount as the
aggregate principal amount of Transfer Restricted Notes duly tendered and not
validly withdrawn by Holders thereof pursuant to the Registered Exchange Offer
and the delivery of such Exchange Notes to such Holders. The term "Consummation"
has a meaning correlative to the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Company, guaranteed by
the Guarantors, substantially identical in all material respects to the Notes
other than issue date (except that the Additional Interest provisions and the
transfer restrictions pertaining to the Notes will be modified or eliminated, as
appropriate), to be issued under the Indenture.
"Exchange Offer Registration Period" means the 180-day period
following the Consummation of the Registered Exchange Offer, exclusive of any
period during which any stop
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order shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement or during which the Company has suspended the use of the
Prospectus contained therein pursuant to Section 2(d); provided, however, that
in the event that all resales of Exchange Notes (including, subject to the time
periods set forth herein, any resales by Participating Broker-Dealers) covered
by such Exchange Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not thereafter remain continuously effective for
such period.
"Exchange Offer Registration Statement" means a registration
statement of the Company and the Guarantors on an appropriate form under the Act
with respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Filing Date" has the meaning set forth in Section 2 hereto.
"Holder" means any holder from time to time of Transfer Restricted
Notes or Exchange Notes (including any of the Initial Purchasers).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, dated as of June 17, 2002, among the Company, the Guarantors and
The Bank of New York, as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the terms
thereof.
"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Issue Date" means June 17, 2002.
"Losses" has the meaning set forth in Section 8(d) hereto.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of Transfer Restricted Notes registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering
under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Participating Broker-Dealer" means any Holder (which may include
any of the Initial Purchasers) that is a broker-dealer electing to exchange
Notes acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"Private Exchange Notes" has the meaning set forth in Section 2(g)
hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act or any similar rule that may be adopted by
the Commission), as amended or supplemented by any
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prospectus supplement, with respect to the terms of the offering of any portion
of the Transfer Restricted Notes covered by such Registration Statement, and all
amendments and supplements to the Prospectus.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the proposed offer to the Holders
to issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Notes.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Notes (including any guarantees of each thereof) pursuant to the
provisions of this Agreement, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto, and all material
incorporated by reference therein.
"Shelf Registration" means a registration of Transfer Restricted
Notes with the Commission effected pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(c) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company and the Guarantors filed pursuant to the provisions of
Section 3 hereof, which covers some or all of the Transfer Restricted Notes, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and which may be in the format of an
amendment to the Exchange Offer Registration Statement if permitted by the
Commission, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Transfer Restricted Notes" means each Note upon original issuance
thereof and at all times subsequent thereto, each Exchange Note as to which
Section 3(a)(iii) or Section 3(a)(iv) apply upon original issuance and at all
times subsequent thereto, until in the case of any such Note or Exchange Note,
as the case may be, the earliest to occur of (i) the date on which such Note has
been exchanged by a person other than a Participating Broker-Dealer for an
Exchange Note (other than with respect to an Exchange Note as to which Section
3(a)(iii) or Section 3(a)(iv) apply), (ii) with respect to Exchange Notes
received by Participating Broker-Dealers in the Registered Exchange Offer, the
date on which such Exchange Note has been sold by such Participating
Broker-Dealer by means of the Prospectus contained in the Exchange Offer
Registration Statement, (iii) a Shelf Registration Statement covering such Note
or Exchange Note, as the case may be, has been declared effective by the
Commission and such Note or Exchange Note, as the case may be, has been disposed
of in accordance with such effective Shelf Registration Statement, (iv) the date
on which such Note or Exchange Note, as the case may be, can be sold without any
limitations under clauses (c), (e), (f) or (h) of Rule 144 under the Act or any
similar rule that may be adopted by the Commission or (v) such Note or Exchange
Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means the trustee with respect to the Notes or Exchange
Notes, as applicable, under the Indenture.
2. Registered Exchange Offer; Resales of Exchange Notes by
Participating Broker-Dealers; Private Exchange. (a) The Company and the
Guarantors shall prepare and, not later than 90 days from the Issue Date (or, if
such 90th day is not a Business Day, by the first Business Day thereafter),
shall file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer (the date of such filing hereinafter
referred to as the "Filing Date"). The Company and the Guarantors shall use
commercially reasonable efforts (i) to cause the Exchange Offer Registration
Statement to be declared effective under the Act within 150 days from the Issue
Date (or, if such 150th day is not a Business Day, by the first Business Day
thereafter), and (ii) to Consummate the Registered Exchange Offer within 20
Business Days from the date the Exchange Offer Registration Statement becomes
effective.
(b) The objective of such Registered Exchange Offer is to enable
each Holder electing to exchange Transfer Restricted Notes for Exchange Notes
assuming that such Holder (x) is not an "affiliate" of the Company or any of the
Guarantors within the meaning of the Act, (y) is not a broker-dealer that
acquired the Transfer Restricted Notes in a transaction other than as a part of
its market-making or other trading activities and (z) if such Holder is not a
broker-dealer, acquires the Exchange Notes in the ordinary course of such
Holder's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or intentions with any person to make a
distribution of the Exchange Notes) to resell such Exchange Notes from and after
their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States. Each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company and the
Guarantors that at the time of the Consummation of the Registered Exchange Offer
each of the items listed in subsections (x), (y), and (z) of this Section 2(b).
(c) In connection with the Registered Exchange Offer, the Company
and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance for not
less than 20 Business Days (or longer if required by applicable law) after
the date notice thereof is mailed to Holders;
(iii) permit Holders to withdraw tendered Notes at any time prior to
5:00 P.M. New York City time on the last Business Day on which the
Registered Exchange Offer shall remain open;
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(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(v) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Company and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any six-month period or an
aggregate of 45 days in any twelve-month period for valid business reasons (not
including avoidance of their obligations hereunder) to avoid premature public
disclosure of a pending corporate transaction, including pending acquisitions or
divestitures of assets, mergers and combinations and similar events; provided
that (i) the Company and the Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable; (ii) the period during which
the Registration Statement is required to be effective and usable shall be
extended by the number of days during which such Registration Statement was not
effective or usable pursuant to the foregoing provisions; and (iii) the
Additional Interest shall accrue on the Notes as provided in Section 4 hereof.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Company and the Guarantors shall: -
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all of the Notes so
accepted for exchange;and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder Exchange Notes equal in principal amount to the Transfer Restricted
Notes of such Holder so accepted for exchange.
(f) The Initial Purchasers, the Company and the Guarantors
acknowledge that, pursuant to interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Participating Broker-Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Notes received by such Participating
Broker-Dealer pursuant to the Registered Exchange Offer in exchange for Transfer
Restricted Notes acquired for its own account as a result of market-making
activities or other trading activities. Accordingly, the Company and the
Guarantors will allow Participating Broker-Dealers and other persons, if any,
with similar prospectus delivery requirements to use the Prospectus contained in
the Exchange Offer Registration Statement during the Exchange Offer Registration
Period in connection with the resale of such Exchange Notes and shall:
(i) include the information set forth in (a) Annex A hereto on the
cover of the Prospectus forming a part of the Exchange Offer Registration
Statement; (b) Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Registered Exchange Offer; (c) Annex C hereto in the plan of distribution
section of the Prospectus forming a part of the Exchange Offer
Registration Statement, and (d) Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer; and
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(ii) use commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective (subject to Section 2(d))
under the Act during the Exchange Offer Registration Period for delivery
of the Prospectus included therein by Participating Broker-Dealers in
connection with sales of Exchange Notes received pursuant to the
Registered Exchange Offer, as contemplated by Section 5(h) below.
(g) In the event that any Initial Purchaser determines that it is
not eligible to participate in the Registered Exchange Offer with respect to the
exchange of Transfer Restricted Notes constituting any portion of an unsold
allotment, upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of such Initial Purchaser,
the Company and the Guarantors shall issue and deliver to such Initial
Purchaser, or to the party purchasing Transfer Restricted Notes registered under
the Shelf Registration Statement from such Initial Purchaser, in exchange for
such Transfer Restricted Notes, a like principal amount of Exchange Notes to the
extent permitted by applicable law (the "Private Exchange Notes"). The Company
and the Guarantors shall use their commercially reasonable efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Exchange Notes as
for Exchange Notes issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) the Company and the Guarantors
are not permitted to file the Exchange Offer Registration Statement or to
Consummate the Registered Exchange Offer because the Registered Exchange Offer
is not permitted by applicable law or Commission policy, (ii) for any other
reason the Registered Exchange Offer is not Consummated within 30 days (or if
such 30th day is not a Business Day, by the first Business Day thereafter) of
the date the Exchange Offer Registration Statement has become effective, (iii)
an Initial Purchaser so requests with respect to Notes which have not been
resold acquired by it directly from the Company and the Guarantors on or prior
to the 30th day (or if such 30th day is not a Business Day, by the first
Business Day thereafter) following the Consummation of the Registered Exchange
Offer, (iv) any Holder notifies the Company and the Guarantors on or prior to
the 30th day (or if such 30th day is not a Business Day, by the first Business
Day thereafter) following the Consummation of the registered Exchange Offer that
(A) such Holder is not eligible to participate in the Registered Exchange Offer,
due to applicable law or Commission policy, (B) the Exchange Notes such Holder
would receive would not be freely tradable, (C) such Holder is a Participating
Broker-Dealer that cannot publicly resell the Exchange Notes that it acquires in
the Registered Exchange Offer without delivering a Prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for resales following the completion of the Registered Exchange Offer,
or (D) the Holder is a broker-dealer and owns Notes it has not exchanged and
that it acquired directly from the Company, one of its Affiliates or any
Guarantor, or (v) in the case where an Initial Purchaser participates in the
Registered Exchange Offer or acquires Private Exchange Notes pursuant to Section
2(g) hereof, the Initial Purchaser does not receive freely tradable Exchange
Notes in exchange for Notes constituting any portion of an unsold allotment and
such Initial Purchaser notifies the Company and the Guarantors on or prior to
the 30th day following the Consummation of the Registered Exchange Offer (it
being understood that, for purposes of this Section 3, (x) the requirement that
the Initial Purchaser deliver a Prospectus containing the information required
by Items 507 and/or 508 of Regulation S-K under the Act in connection with sales
of Exchange Notes acquired in exchange for such Transfer Restricted Notes shall
result in such Exchange Notes being not "freely
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tradable" and (y) the requirement that a Participating Broker-Dealer deliver a
Prospectus in connection with sales of Exchange Notes acquired in the Registered
Exchange Offer in exchange for Transfer Restricted Notes acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Notes being not "freely tradable"), the following provisions shall
apply:
(b) The Company and the Guarantors shall use their commercially
reasonable efforts to prepare and file with the Commission a Shelf Registration
Statement prior to the 30th day (or if such 30th day is not a Business Day, by
the first Business Day thereafter) following the earliest to occur of (i) the
date on which the Company and the Guarantors determine that they are not
permitted to file the Exchange Offer Registration Statement or to Consummate the
Exchange Offer; (ii) 30 days (or if such 30th day is not a Business Day, by the
first Business Day thereafter) after the Exchange Offer Registration Statement
has been declared effective if the Registered Exchange Offer has not been
Consummated by such date and (iii) the date notice is given pursuant to Section
(a)(iii), (iv) or (v) above (or if either such 30th day is not a Business Day,
by the first Business Day thereafter) and shall use their commercially
reasonable efforts to cause the Shelf Registration Statement to be declared
effective by the Commission within 90 days thereafter (or if such 90th day is
not a Business Day, by the first Business Day thereafter). With respect to
Exchange Notes received by any of the Initial Purchasers in exchange for Notes
constituting any portion of an unsold allotment, the Company and the Guarantors
may, if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of their obligations under this paragraph (b) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(c) The Company and the Guarantors shall use their commercially
reasonable efforts to keep such Shelf Registration Statement continuously
effective (subject to Section 3(d)) in order to permit the Prospectus forming a
part thereof to be usable by Holders until the earliest of (i) such time as the
Notes or Exchange Notes covered by the Shelf Registration Statement can be sold
without any limitations under clauses (c), (e), (f) and (h) of Rule 144 or
similar rule adopted by the Commission, (ii) two years from the date the Shelf
Registration Statement has been declared effective exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Exchange Offer Registration Statement or during which the Company has
suspended the use of the Prospectus contained therein pursuant to Section 3(d)
and (iii) such date as of which all the Transfer Restricted Notes have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company and the Guarantors
shall be deemed not to have used their commercially reasonable efforts to keep
the Shelf Registration Statement effective during the Shelf Registration Period
if it voluntarily takes any action that would result in Holders of Transfer
Restricted Notes covered thereby not being able to offer and sell such notes
during that period, unless such action is (x) required by applicable law or (y)
pursuant to Section 3(d) hereof, and, in either case, so long as the Company and
the Guarantors promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable.
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(d) The Company and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any six-month period or an
aggregate of 45 days in any twelve-month period for valid business reasons (not
including avoidance of their obligations hereunder) to avoid premature public
disclosure of a pending corporate transaction, including pending acquisitions or
divestitures of assets, mergers and combinations and similar events; provided
that (i) the Company and the Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable; (ii) the period during which
the Registration Statement is required to be effective and usable shall be
extended by the number of days during which such Registration Statement was not
effective or usable pursuant to the foregoing provisions; and (iii) the
Additional Interest shall accrue on the Notes as provided in Section 4 hereof.
(e) No Holder of Transfer Restricted Notes may include any of its
Transfer Restricted Notes in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company and the
Guarantors in writing, within 30 days after receipt of a request therefor, such
information as the Company and the Guarantors may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Notes shall be
entitled to Additional Interest pursuant to Section 4 hereof unless and until
such Holder shall have used its commercially reasonable efforts to provide all
such reasonably requested information. Each Holder of Transfer Restricted Notes
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company and the Guarantors all information required to be
disclosed in order to make the information previously furnished to the Company
and the Guarantors by such Holder not misleading.
4. Additional Interest.
(a) The parties hereto agree that Holders of Transfer Restricted
Notes will suffer damages if the Company or the Guarantors fails to perform
their obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event that
(i) the applicable Registration Statement is not filed with the Commission on or
prior to the date specified herein for such filing, (ii) the applicable
Registration Statement has not been declared effective by the Commission on or
prior to the date specified herein for such effectiveness after such obligation
arises, (iii) if the Registered Exchange Offer is required to be Consummated
hereunder, the Registered Exchange Offer has not been Consummated by the Company
and the Guarantors within the time period set forth in Section 2(a) hereof, (iv)
prior to the end of the Exchange Offer Registration Period or the Shelf
Registration Period, the Commission shall have issued a stop order suspending
the effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, or proceedings have been initiated
with respect to the Registration Statement under Section 8(d) or 8(e) of the
Act, or (v) the Company and the Guarantors shall have initiated a suspension
period pursuant to Section 2(d) or 3(d) (each such event referred to in clauses
(i) through (v), a "Registration Default"), then additional interest with
respect to the Transfer Restricted Notes ("Additional Interest") will accrue
with respect to the first 90-day period immediately following the occurrence of
such Registration Default in an amount equal to 0.25% per annum per $1,000
principal amount of such Notes and will increase by an additional 0.25% per
annum per $1,000 principal amount of such Notes for each subsequent 90-day
period until such Registration Default has been cured, up to an aggregate
maximum amount of Additional
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Interest of 1.50% per annum per $1,000 principal amount of Notes for all
Registration Defaults. Following the cure of a Registration Default, the accrual
of Additional Interest with respect to such Registration Default will cease and
upon the cure of all Registration Defaults the accrual of all Additional
Interest will cease. Notwithstanding anything to the contrary in this Section
4(a), the Company and the Guarantors shall not be required to pay Additional
Interest to a Holder of Restricted Transfer Notes if such Holder failed to
comply with its obligations to make the representations set forth in the second
sentence of Section 2(b).
(b) The Company shall notify the Trustee and paying agent under
the Indenture (or the trustee and paying agent under such other indenture under
which any Transfer Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Company and the Guarantors shall pay
the Additional Interest due on the Transfer Restricted Notes by depositing with
the paying agent (which shall not be the Company or the Guarantors for these
purposes) for the Transfer Restricted Notes, in trust, for the benefit of the
Holders thereof, prior to 11:00 A.M. on the next interest payment date specified
in the Indenture (or such other indenture), sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date specified by the Indenture (or such other indenture)
to the record holders entitled to receive the interest payment to be made on
such date. Each obligation to pay Additional Interest shall be deemed to accrue
from and include the date of the applicable Registration Default to, but
excluding, the relevant interest payment date.
(c) The parties hereto agree that the Additional Interest provided
for in this Section 4 constitutes a reasonable estimate of the damages that will
be suffered by holders of Transfer Restricted Notes by reason of the happening
of any Registration Default and are intended to constitute the sole remedy for
damages that will be suffered by the Holders of the Transfer Restricted Notes by
reason of any of the failures listed in Section 4(a).
(d) All of the Company's and the Guarantors' obligations set forth
in this Section 4 which are outstanding with respect to any Transfer Restricted
Note at the time such Note ceases to be covered by an effective Registration
Statement shall survive until such time as all such obligations with respect to
such Note have been satisfied in full (notwithstanding termination of this
Agreement).
5. Registration Procedures. In connection with any Exchange Offer
Registration Statement, and, to the extent applicable, any Shelf Registration
Statement the following provisions shall apply:
(a) The Company and the Guarantors shall furnish to Wachovia
Securities, Inc. and Credit Suisse First Boston Corporation (collectively
"Wachovia and CSFB"), prior to the filing thereof with the Commission, a copy of
any Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use their
commercially reasonable efforts to reflect in each such document, when so filed
with the Commission, such comments as Wachovia and CSFB reasonably may propose.
(b) The Company and the Guarantors shall ensure that:
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(i) any Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement thereto
complies in all material respects with the Act;
(ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration Statement,
including 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;
provided that no representation or agreement is made hereby with respect to
information with respect to any of the Initial Purchasers, any Underwriter or
any Holder required to be included in any Registration Statement or Prospectus
pursuant to the Act or provided by any of the Initial Purchasers, any Holder or
any Underwriter specifically for inclusion in any Registration Statement or
Prospectus.
(c) (1) The Company and the Guarantors shall advise Wachovia and
CSFB and, in the case of a Shelf Registration Statement, the Holders of Transfer
Restricted Notes covered thereby, and, if requested by Wachovia and CSFB or any
such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus included therein or for
additional information.
(2) The Company and the Guarantors shall advise Wachovia and CSFB
and, in the case of a Shelf Registration Statement, the Holders of Transfer
Restricted Notes covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Participating Broker-Dealer that has provided in
writing to the Company a telephone or facsimile number and address for notices,
and, if requested by Wachovia and CSFB or any such Holder or Participating
Broker-Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(ii) of the receipt by the Company or any Guarantor of any
notification with respect to the suspension of the qualification of the
Transfer Restricted Notes included in any Registration Statement for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
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(iii) of the happening of any event that requires the making of any
changes in the Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made).
(d) The Company and the Guarantors shall use their commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible time.
(e) The Company and the Guarantors shall furnish to each Holder of
Transfer Restricted Notes included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits thereto (including those incorporated by reference).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Transfer Restricted Notes
included within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including any preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Company and the
Guarantors consent to the use of the Prospectus (including any preliminary
prospectus) or any amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Notes in connection with the offering and sale of
the Transfer Restricted Notes covered by the Prospectus or any amendment or
supplement thereto.
(g) The Company and the Guarantors shall furnish to each
Participating Broker-Dealer that so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, any documents
incorporated by reference therein and, if the Participating Broker-Dealer so
requests in writing, all exhibits thereto (including those incorporated by
reference).
(h) The Company and the Guarantors shall, during the Exchange
Offer Registration Period and pursuant to the requirements of the Act for the
resale of the Exchange Notes during the period in which a prospectus is required
to be delivered under the Act (including any Commission no-action letters
relating to the Registered Exchange Offer), deliver to each Participating
Broker-Dealer, without charge, as many copies of the Prospectus (including any
preliminary Prospectus) included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Participating Broker-Dealer may
reasonably request; and the Company and the Guarantors consent to the use of the
Prospectus (including any preliminary prospectus) or any amendment or supplement
thereto by any such Participating Broker-Dealer in connection with the offering
and sale of the Exchange Notes, as provided in Section 2(f) above.
12
(i) Prior to the Registered Exchange Offer or any other offering
of Transfer Restricted Notes pursuant to any Registration Statement, the Company
and the Guarantors shall use commercially reasonable efforts to register,
qualify or cooperate with the Holders of Transfer Restricted Notes included
therein and their respective counsel in connection with the registration or
qualification of such Transfer Restricted Notes for offer and sale under the
securities or blue sky laws of such states as any such Holders reasonably
request in writing and do any and all other commercially reasonable acts or
things necessary or advisable to enable the offer and sale in such jurisdictions
of the Transfer Restricted Notes covered by such Registration Statement;
provided, however, neither the Company nor the Guarantors will be required to
qualify generally to do business in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(j) The Company and the Guarantors shall cooperate with the
Holders to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Notes to be sold pursuant to any Registration
Statement free of any restrictive legends and in denominations and registered in
such names as Holders may request prior to sales of Transfer Restricted Notes
pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by Section 2(d),
3(d) or paragraph (c)(2)(iii) of this Section 5, the Company and the Guarantors
shall promptly prepare and file a posteffective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or any other
required document so that, as thereafter delivered to purchasers of the Transfer
Restricted Notes included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(1) The Company and the Guarantors shall use their commercially
reasonable efforts to cause The Depository Trust Company ("DTC") on the first
Business Day following the effective date of any Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any existing
CUSIP number assigned to the Transfer Restricted Notes or Exchange Notes, as the
case may be, any designation indicating that such notes are "restricted
securities," which efforts shall include delivery to DTC of a letter executed by
the Company substantially in the form of Annex E hereto and (ii) any other stop
or restriction on DTC's system with respect to the Transfer Restricted Notes or
Exchange Notes, as the case may be. In the event the Company and the Guarantors
are unable to cause DTC to take actions described in the immediately preceding
sentence, the Company and the Guarantors shall take such actions as the Initial
Purchasers may reasonably request to provide, as soon as practicable, a new
CUSIP (if not already obtained) number for the Transfer Restricted Notes or
Exchange Notes registered under such Registration Statement and to cause such
CUSIP number to be assigned to the Transfer Restricted Notes or Exchange Notes
(or to the maximum aggregate principal amount of the securities to which such
number may be assigned).
(m) The Company and the Guarantors shall use their commercially
reasonable efforts to comply with all applicable rules and regulations of the
Commission and shall make generally available to the security holders as soon as
practicable after the effective date of the
13
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(n) The Company and the Guarantors shall commercially reasonable
efforts to cause the Indenture to be qualified under the Trust Indenture Act in
a timely manner.
(o) The Company and the Guarantors may require each Holder of
Transfer Restricted Notes to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and the Guarantors such information
regarding the Holder and the distribution of such Transfer Restricted Notes as
may, from time to time, be reasonably required by the Act, and the obligations
of the Company and the Guarantors to any Holder hereunder shall be expressly
conditioned on the compliance of such Holder with such request.
(p) The Company and the Guarantors shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement (i) such information as the Majority Holders provide or,
if the Transfer Restricted Notes are being sold in an underwritten offering, as
the Managing Underwriters and the Majority Holders reasonably agree should be
included therein and, in either case, provided to the Company or the Guarantors
in writing for inclusion in the Shelf Registration Statement, or Prospectus, and
(ii) such information as a Holder may provide from time to time to the Company
or the Guarantors in writing for inclusion in a Prospectus or any Shelf
Registration Statement, in the case of clause (i) or (ii) above, concerning such
Holder and/or underwriter and the distribution of such Holder's Transfer
Restricted Notes and, in either case, shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
being notified in writing of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall enter into such agreements (including underwriting
agreements) and take all other customary and appropriate actions as may be
reasonably requested in order to expedite or facilitate the registration or the
disposition of any Transfer Restricted Notes, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 8 (or such other provisions and procedures reasonably acceptable to
the Majority Holders and the Managing Underwriters, if any, with respect to all
parties to be indemnified pursuant to Section 8).
(r) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Transfer Restricted Notes to be registered thereunder, any Managing
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Managing Underwriter, all relevant
financial and other records, pertinent corporate documents and properties
of the Company and any of its subsidiaries;
14
(ii) use commercially reasonable efforts to cause the Company's and
the Guarantors' officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any such Managing
Underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence
examinations; provided, however, that any information that is designated
in writing by the Company and the Guarantors as confidential at the time
of delivery of such information shall be kept confidential by the Holders
or any such Managing Underwriter, attorney, accountant or agent, unless
(x) disclosure thereof is made in connection with a court proceeding or
required by law; provided that each Holder and any such Managing
Underwriter, attorney, accountant or agent will, upon learning that
disclosure of such information is sought in a court proceeding or required
by law, give notice to the Company and the Guarantors with enough time to
allow the Company and the Guarantors to undertake appropriate action to
prevent disclosure at the Company's and the Guarantors' sole expense, or
(y) such information has previously been made or becomes available to the
public generally through the Company, the Guarantors or through a third
party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Transfer Restricted Notes registered thereunder and the Managing
Underwriters, if any, in form, substance and scope as are customarily made
by the Company and the Guarantors to Managing Underwriters and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and the Guarantors
and updates thereof (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Managing Underwriters,
if any) addressed to each selling Holder and the Managing Underwriters, if
any, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and Managing Underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and the Guarantors
(and, if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each selling
Holder of the Transfer Restricted Notes covered by such Shelf Registration
Statement (provided such Holder furnishes the accountants with such
representations as the accountants customarily require in similar
situations) and the Managing Underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 5(i) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Guarantors.
15
The foregoing actions set forth in this Section 5(r) shall be
performed at (i) the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (ii) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(s) The Company and the Guarantors shall, if and to the extent
required under the Act and/or the Trust Indenture Act and the rules and
regulations thereunder in order to register the guarantees under the Act and
qualify the Indenture under the Trust Indenture Act, cause each guarantor, if
any, to sign any Registration Statement and take all other action necessary to
register any such guarantees under the applicable Registration Statement.
6. Registration Expenses. The Company and the Guarantors shall bear
all reasonable fees and expenses (including the reasonable fees and expenses, if
any, of Cleary, Gottlieb, Steen & Hamilton, counsel for the Initial Purchasers,
incurred in connection with the Registered Exchange Offer) incurred in
connection with the performance of their obligations under Sections 2, 3, 4 and
5 hereof (other than brokers', dealers' and underwriters' discounts and
commissions and brokers', dealers' and underwriters' counsel fees) and, in
connection with the Shelf Registration Statement, shall reimburse the Holders
for the reasonable fees and disbursements of one firm or counsel designated by
the Majority Holders to act as counsel for the Holders in connection therewith.
7. Rules 144 and 144A. The Company shall use commercially reasonable
efforts to file the reports required to be filed by it under the Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Transfer
Restricted Notes, make publicly available other information so long as necessary
to permit sales of their securities pursuant to Rules 144 and 144A (or any
successor rule adopted by the Commission). The Company covenants that it will
take such further action as any Holder of Transfer Restricted Notes may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Notes without registration under the
SECURITIES ACT WITHIN THE LIMITATION of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4) if applicable). The Company
will provide a copy of this Agreement to prospective purchasers of Transfer
Restricted Notes identified to the Company by the Initial Purchasers upon
request. Upon the request of any Holder of Transfer Restricted Notes, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Company or any Guarantor to register
any of its securities pursuant to the Exchange Act.
8. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the Company
and the Guarantors, jointly and severally, agree to indemnify and hold
harmless each Holder of Transfer Restricted Notes covered thereby, the
directors, officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common
16
law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, in
any preliminary Prospectus or Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon 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
agree to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company and the Guarantors will not be
liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon (A) any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information relating to the
Holder furnished to the Company and the Guarantors by or on behalf of any
such Holder specifically for inclusion therein, (B) use of a Registration
Statement or the related Prospectus during a period when a stop order has
been issued in respect of such Registration Statement or any proceedings
for that purpose have been initiated or use of a Prospectus when use of
such Prospectus has been suspended pursuant to Section 2(d), 3(d) or
5(c)(2); provide , further, in each case, that Holders received prior
notice of such stop order, initiation of proceedings or suspension or (C)
if the Holder is required to but does not deliver a Prospectus or the
then-current Prospectus. This indemnity agreement will be in addition to
any liability which the Company and the Guarantors may otherwise have.
(ii) The Company and the Guarantors also agree to indemnify or
contribute to Losses, as provided in Section 8(d), of any Managing
Underwriters of Transfer Restricted Notes registered under a Registration
Statement, their officers and directors and each person who controls such
Managing Underwriters on substantially the same basis as that of the
indemnification of the selling Holders provided in this Section 8(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 5(q) hereof.
(b) Each Holder of Transfer Restricted Notes covered by a
Registration Statement severally agrees to indemnify and hold harmless the
Company and the Guarantors, and their respective directors, officers, employees
and agents and each person who controls either of the Company or the Guarantors
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company and the Guarantors to each such Holder,
but only with reference to written information relating to such Holder furnished
to the Company and the Guarantors by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, 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
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not
17
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded, based on the advice of outside counsel, that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall have authorized the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided further, that the indemnifying party
shall not be responsible for the fees and expenses of more than one separate
counsel (together with appropriate local counsel) representing all the
indemnified parties under paragraph (a) or paragraph (b) above. An indemnifying
party will not, without the prior written consent of the indemnified parties,
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.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
18
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Holder or such other
indemnified person, as the case may be, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Benefits received by the Company and the Guarantors
shall be deemed to be equal to the sum of (x) the aggregate principal amount of
the Notes and (y) the total amount of Additional Interest which the Company and
the Guarantors were not required to pay as a result of registering the Transfer
Restricted Notes covered by the Registration Statement which resulted in such
Losses. Benefits received by any Holder shall be deemed to be equal to the value
of receiving Transfer Restricted Notes registered under the Act. Benefits
received by any Managing Underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to, among other things,
whether any alleged untrue statement or omission relates to information provided
by the indemnifying party, on the one hand, or by the indemnified party, on the
other hand. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
any other provision of this Section 5(d), the Holders of the Transfer Restricted
Notes shall in no case be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Transfer Restricted Notes pursuant to a Registration Statement exceeds the
amount of damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and in no case shall any Managing Underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Transfer Restricted Notes purchased by such Managing Underwriter under the
Registration Statement which resulted in such Losses. The parties agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an indemnified party within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of such indemnified party shall have the same rights to
contribution as such indemnified party, and each person who controls the Company
or the Guarantors within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of the Company or the Guarantors
shall have the same rights to contribution as the Company and the Guarantors,
subject in each case to the applicable terms and conditions of this paragraph
(d).
(e) The provisions of this Section 8 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company, the Guarantors or any of the officers, directors or controlling persons
referred to in Section 8 hereof, and will survive the sale by a Holder of
Transfer Restricted Notes covered by a Registration Statement.
19
9. Underwritten Registrations
If any of the Transfer Restricted Notes covered by any Shelf
Registration statement are to be sold in an underwritten offering, the Managing
Underwriter that will administer the offering will be selected by the Majority
Holders of such Transfer Restricted Notes included in such offering, subject to
the consent of the Company not to be unreasonably withheld; it being expressly
agreed that Wachovia and CSFB are acceptable Managing Underwriters to the
Company and such Holders shall be responsible for all underwriting commissions
and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Guarantors have
not, as of the date hereof, entered into nor shall they, on or after the date
hereof, enter into any agreement that is inconsistent with the rights granted to
the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Guarantors have
obtained the written consent of the Majority Holders. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Transfer Restricted Notes are being sold pursuant to a Shelf Registration
Statement or whose Notes are being exchanged pursuant to an Exchange Offer
Registration Statement, as the case may be, and which does not directly or
indirectly affect the rights of other Holders may be given by such Holders,
determined on the basis of Notes being sold rather than registered.
Notwithstanding any of the foregoing, no amendment, modification, supplement,
waiver or consents to any departure from the provisions of Section 8 hereof
shall be effective as against any Holder of Transfer Restricted Notes unless
consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchasers, as follows:
Wachovia Securities, Inc.
Wachovia Center
20
301 South College Street
Charlotte, NC 28288
Attention: Corporate Finance Department
with a copy mailed or delivered to:
Allan G. Sperling, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
212-225-2260
(ii) if to any other Holder, at the most current address given by
such Holder to the Company and the Guarantors in accordance with the
provisions of this Section 10(c), which address initially is, with respect
to each Holder, the address of such Holder maintained by the registrar
under the Indenture, with a copy in like manner to the Initial Purchasers;
and
(iii) if to the Company or any of the Guarantors, as follows:
JLG Industries, Inc.
1 JLG Drive
McConnellsburg, Pennsylvania 17233-9533
(717)485-5161
Attention: Corporate Secretary
with a copy mailed or delivered to:
W. Andrew Jack, Esq.
Covington & Burling
1201 Pennsylvania Avenue NW
Washington, DC 2004-2401
All such notices and communications shall be deemed to have been
duly given when received, if delivered by hand or air courier, and when sent, if
sent by first-class mail, telex or telecopier.
The Company and the Guarantors by notice to the others may designate
additional or different addresses for subsequent notices or communications.
(d) 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 the need for an express assignment or any consent by
the Company or the Guarantors thereto, subsequent Holders. The Company and the
Guarantors hereby agree to extend the benefits of this Agreement to any Holder
and any such Holder may specifically enforce the provisions of this Agreement as
if an original party hereto.
21
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law and Consent to Jurisdiction. This agreement shall
be governed by and construed in accordance with the laws of the State of New
York. The Company and the Guarantors (x) submit to the nonexclusive jurisdiction
of the courts of the State of New York and of the United States sitting in the
Borough of Manhattan in respect of any action, claim or proceeding
("Proceeding") arising out of or relating to this Agreement or the transactions
contemplated hereby, (y) irrevocably waive, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the laying of
venue of any Proceeding in the Supreme Court of the State of New York, County of
New York, or the United States District Court for the Southern District of New
York, and any claim that any Proceeding in any such court has been brought in an
inconvenient forum, and (z) agree that any service of process or other legal
summons in connection with any Proceeding may be served on it by mailing a copy
thereof by registered mail, or a form of mail substantially equivalent thereto,
postage prepaid, addressed to the served party at its address as provided for in
Section 10(c). Nothing in this section shall affect the right of the parties to
serve process in any other manner permitted by law.
(h) Obligations of Material Domestic Subsidiaries. If any person
becomes a Material Domestic Subsidiary (as defined in the Indenture) after the
date hereof and while the Company has continuing obligations under this
Agreement, the Company will cause such Material Domestic Subsidiary to become a
party hereto including for purposes of registration obligations, the guarantee
of Additional Interest on a joint and several basis and indemnification and
contribution pursuant to Section 8.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(j) Notes Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Transfer Restricted
Notes or Exchange Notes is required hereunder, Transfer Restricted Notes or
Exchange Notes held by the Company, the Guarantors or any of their respective
Affiliates (other than subsequent Holders of Transfer Restricted Notes or
Exchange Notes if such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
22
Registration Rights Agreement
Please confirm that the foregoing correctly sets forth the agreement
between and among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
JLG Industries, Inc.
By: /s/ James H. Woodward, Jr.
---------------------------------------------
Name: James H. Woodward, Jr.
Title: Executive Vice President Chief
Financial Officer
By: /s/ Thomas D. Singer
---------------------------------------------
Name: Thomas D. Singer
Title: Senior Vice President, General Counsel and
Secretary
Registration Rights Agreement
The foregoing Agreement is hereby acknowledged and accepted as of the date first
written above
by Wachovia Securities, Inc.
Credit Suisse First Boston Corporation
For themselves and on behalf of the several
Initial Purchasers
WACHOVIA SECURITIES, INC.
By: /s/ Lewis S. Morris III
--------------------------
Name: Lewis S. Morris III
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------
Name:
Title:
Registration Rights Agreement
The foregoing Agreement is hereby acknowledged and accepted as of the date first
written above
by Wachovia Securities, Inc.
Credit Suisse First Boston Corporation
For themselves and on behalf of the several
Initial Purchasers
WACHOVIA SECURITIES, INC.
By:
---------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Colleen A. Burke
----------------------------------
Name: Colleen A. Burke
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer during the Exchange Offer Registration
Period in connection with resales of Exchange Notes received in exchange for
Notes where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, during the Exchange Offer Registration Period, it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
A-1
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes
during the Exchange Offer Registration Period. See "Plan of Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes during the
Exchange Offer Registration Period. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired as a result of market-making activities or other trading
activities. The Company and the Guarantors have agreed that, during the Exchange
Offer Registration Period, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until 2002, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.
The Company and the Guarantors will not receive any proceeds from
any sale of Exchange Notes by broker-dealers. Exchange Notes received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit from any such resale
of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
During the Exchange Offer Registration Period, the Company and the
Guarantors will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company and the Guarantors have
agreed to pay all expenses incident to the Registered Exchange Offer (including
the expenses of one counsel for the holders of the Notes) other than dealers'
and brokers' discounts, commissions and counsel fees and will indemnify the
holders of the Notes (including any broker-dealers) against certain liabilities,
including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-1
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
[ ]
Name:
------------------------------------
Address:
------------------------------------
------------------------------------
The undersigned represents that it is not an Affiliate of the
Company or any of the Guarantors, that any Exchange Notes to be received by it
will be acquired in the ordinary course of business and that at the time of the
commencement of the Registered Exchange Offer it had no arrangement with any
person to participate in a distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes. If the undersigned is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Notes, it represents that the Notes to be exchanged for Exchange Notes were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Notes; 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 Act.
D-1
ANNEX E
FORM OF LETTER TO BE PROVIDED BY THE COMPANY TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
55 Water Street, 50th Floor
New York, NY 10041
Re: 8 3/8 % Senior Subordinated Notes Due 2012 (the
"Notes") of JLG Industries, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-- under the Securities Act
of 1933, as amended, with regard to all of the Notes referenced above.
Accordingly, there is no longer any restriction as to whom such Notes may be
sold and [any restrictions on the CUSIP designation are no longer appropriate
and may be removed] [the new CUSIP number for the Notes provided should be
used]. I understand that upon receipt of this letter, DTC will remove any stop
or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
Very truly yours,
JLG INDUSTRIES, INC.
By:
---------------------
Authorized Officer
E-1