Exhibit 4.7
$600,000,000
10 1/4% SENIOR NOTES DUE 2011
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
TEXAS INDUSTRIES, INC.,
THE SUBSIDIARIES LISTED IN SCHEDULE A,
AS GUARANTORS
AND
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
BANC ONE CAPITAL MARKETS, INC.
WELLS FARGO SECURITIES, LLC
SUNTRUST CAPITAL MARKETS, INC.
COMERICA SECURITIES, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
HIBERNIA SOUTHCOAST CAPITAL, INC.
DATED AS OF JUNE 6, 2003
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of June 6, 2003, by and among Texas Industries, Inc., a Delaware
corporation (the "Company"), the Guarantors listed in Schedule A attached hereto
(the "Guarantors") and Banc of America Securities LLC, UBS Warburg LLC , Banc
One Capital Markets, Inc. Wells Fargo Securities, LLC, SunTrust Capital Markets,
Inc., Comerica Securities, Inc., Credit Lyonnais Securities (USA) Inc. and
Hibernia Southcoast Capital, Inc. (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers"), each of whom has agreed to purchase the
Company's 10 1/4% Senior Notes due 2011 (the "Initial Securities") pursuant to
the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated as of May 30, 2003 (the "Purchase Agreement"), by and among the Company,
the Guarantors and the Initial Purchasers (i) for the benefit of each Initial
Purchaser and (ii) for the benefit of the holders from time to time of the
Securities (including each Initial Purchaser). In order to induce the Initial
Purchasers to purchase the Initial Securities, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Initial Purchasers
set forth in Section 5 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Advice: As defined in Section 6 hereof.
Broker-Dealer: Any broker or dealer registered with the
Commission under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The United States Securities and Exchange
Commission.
Consummate: A registered Exchange Offer shall be deemed
"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 Exchange 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 Company to the
Registrar under the Indenture of Exchange Securities in the same
aggregate principal amount as the aggregate principal amount of Initial
Securities that were tendered by Holders thereof pursuant to the
Exchange Offer.
Effectiveness Target Date: As defined in Sections 3(a) hereof
with respect to the Exchange Offer Registration Statement and as
defined in Section 4(a) hereof with respect to a Shelf Registration
Statement.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company and the
Guarantors under the Securities Act of the Exchange Securities and the
guarantees thereof pursuant to a Registration Statement pursuant to
which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange
Securities and the guarantees thereof in an aggregate principal amount
equal to the aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exchange Securities: The 10 1/4% Senior Notes due 2011, of the
same series under the Indenture as the Initial Securities, to be issued
to Holders in exchange for Transfer Restricted Securities pursuant to
this Agreement.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Initial Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, and to non-U.S. persons pursuant to Regulation S under
the Securities Act.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of June 6, 2003, among the
Company, the Guarantors and Wells Fargo Bank, National Association, 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 Purchaser: As defined in the preamble hereto.
Initial Securities: The 10 1/4% Senior Notes due 2011, of the
same series under the Indenture as the Exchange Securities, for so long
as such securities constitute Transfer Restricted Securities.
Initial Placement: The issuance and sale by the Company of the
Initial Securities to the Initial Purchasers pursuant to the Purchase
Agreement.
Liquidated Damages: As defined in Section 5 hereof.
NASD: The National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, 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.
Purchase Agreement: As defined in the preamble hereto.
Registrar: As defined in the Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company and the Guarantors relating to (a) an offering of Exchange
Securities and the related guarantees pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities and
the related guarantees pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each
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: The Initial Securities and the Exchange
Securities, each individually, a "Security".
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
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Shelf Registration Statement: As defined in Section 4 hereof.
Trust Indenture Act: The Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa to 77bbbb) as in effect on the date of the
Indenture.
Transfer Restricted Security: Each Security, until the
earliest to occur of (i) the date on which such Security is exchanged
in the Exchange Offer and entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (ii) the date on which such
Security has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement, (iii)
the date on which such Security is distributed to the public pursuant
to Rule 144 under the Securities Act or by a Broker-Dealer pursuant to
the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including the delivery of the Prospectus
contained therein) and (iv) the date on which such security may be
resold without restriction pursuant to Rule 144(k) under the Securities
Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted
Securities.
SECTION 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),
the Company and the Guarantors shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in no
event later than 60 days after the Closing Date, a Registration
Statement under the Securities Act relating to the Exchange Securities
and the Exchange Offer, (ii) use its best efforts to cause such
Registration Statement to become effective at the earliest possible
time, but in no event later than 180 days after the Closing Date (as
such date relates to the Exchange Offer Registration Statement, the
"Effectiveness Target 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) all necessary filings in connection with the registration and
qualification of the Exchange Securities to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange Offer
shall be on the appropriate form permitting registration of the
Exchange Securities and the related guarantees to be offered in
exchange for the Transfer Restricted Securities and to permit resales
of Securities held by Broker-Dealers as contemplated by Section 3(c)
below.
(b) The Company shall 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 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company shall cause the
Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Securities shall be
included in the Exchange Offer Registration Statement. The Company
shall use its best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become
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effective, but in no event later than 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer
Registration Statement.
(c) The Company shall indicate in a "Plan of
Distribution" section contained in the Prospectus forming a part of the
Exchange Offer Registration Statement that any Broker-Dealer who holds
Initial 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 Company), may exchange such
Initial Securities pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning
of the Securities Act ( a "Participating Broker-Dealer") and must,
therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange
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 Securities held
by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this
Agreement.
The Company and the Guarantors shall use their 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 Securities and related guarantees 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 ending on the earlier of (i) 180 days from
the date on which the Exchange Offer Registration Statement is declared
effective and (ii) the date on which a Broker-Dealer is no longer
required to deliver a prospectus in connection with market-making or
other trading activities.
The Company shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon
request at any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is 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), (ii) for any
reason the Exchange Offer is not Consummated within 210 days after the
Closing Date, or (iii) any Holder of Transfer Restricted Securities
shall notify the Company prior to the 20th day following the
Consummation of the Exchange Offer that (A) such Holder is prohibited
by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange
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) such Holder is a Broker-Dealer
and holds Initial Securities acquired directly from the Company or one
of its affiliates, then, upon such Holder's request, the Company and
the Guarantors shall:
(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 earliest to occur of (1) the
45th day after the date on which the Company determines that
it is not required to file the Exchange Offer Registration
Statement, and (2) the 45th day after the date on which the
Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (iii) above (such
earliest date being the "Shelf Filing
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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) use their best efforts to cause such
Shelf Registration Statement to be declared effective by the
Commission on or before the 90th day after the Shelf Filing
Deadline (as such date relates to a Shelf Registration
Statement, the "Effectiveness Target Date").
The Company and the Guarantors shall use their 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 of at least two years following the
effective date of such Shelf Registration Statement (or shorter period
that will terminate when all the Securities covered by such Shelf
Registration Statement have been sold pursuant to such Shelf
Registration Statement).
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted 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 Company in
writing, within 20 business days after receipt of a request therefor,
such information as the Company may reasonably request (including,
without limitation, the information specified in Items 507 or 508 of
Regulation S-K of the Securities Act) for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company
all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not
materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) 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, (ii) any of such Registration Statements has not
been declared effective by the Commission on or prior to the applicable
Effectiveness Target Date, (iii) 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 (iv) 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 immediately 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 (i) through (iv), a
"Registration Default"), the Company hereby agrees that the interest rate borne
by the Transfer Restricted Securities shall be increased by 0.50% per annum
during the 90-day period immediately following the occurrence of any
Registration Default and shall increase by 0.50% per annum with respect to each
subsequent 90-day period, but in no event shall such increase exceed 1.50% per
annum (any such interest assessed upon the occurrence of a Registration Default
is referred to as "Liquidated Damages"). Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the interest
rate borne by the relevant Transfer Restricted Securities shall be reduced to
the original interest rate borne by such Transfer Restricted Securities;
provided, however, that, if after any such reduction in interest rate, a
different Registration Default occurs, the interest rate borne by the relevant
Transfer Restricted Securities shall again be increased pursuant to the
foregoing provisions.
All obligations of the Company and the Guarantors set forth in
the preceding paragraph that 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 Security shall have been satisfied in full.
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SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Company and the Guarantors
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 and related guarantees being sold in
accordance with the intended method or methods of distribution thereof,
and shall comply with the following provisions:
(i) If in the reasonable opinion of counsel to
the Company there is a question as to whether the Exchange
Offer is permitted by applicable law, the Company and the
Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company
and the Guarantors to Consummate an Exchange Offer for such
Initial Securities. The Company and the Guarantors 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. Each of the Company and the Guarantors
hereby agrees, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission
staff an analysis prepared by counsel to the Company 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 favorable resolution 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 Company, prior to the Consummation thereof,
a written representation to the Company (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 (as defined in Rule 405 under the
Securities Act) of the Company, (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 Exchange Securities to be issued in the
Exchange Offer, (C) it is acquiring the Exchange Securities in
its ordinary course of business. In addition, all such Holders
of Transfer Restricted Securities shall otherwise cooperate in
the Company's preparations for the Exchange Offer, (D) at the
time of the commencement of the Exchange Offer, such Holder
will have no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, and (E) if such Holder is a
Participating Broker Dealer that will receive Exchange
Securities for its own account in exchange for Transfer
Restricted Securities that were acquired as a result of
market-making or other trading activities, that it will
deliver a Prospectus in connection with any resale of such
Exchange Securities. 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) and
Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters
(which may include any no-action letter obtained 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 Exchange Securities
obtained by such Holder in exchange for Initial Securities
acquired by such Holder directly from the Company.
(b) Shelf Registration Statement. In connection with
the Shelf Registration Statement, the Company and the Guarantors 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 Company and the Guarantors 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
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form shall be available for the sale of the Transfer Restricted
Securities and related guarantees in accordance with the intended
method or methods of distribution thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to
permit the sale or resale of Transfer Restricted Securities and related
guarantees (including, without limitation, any Registration Statement
and the related Prospectus required to permit resales of Securities by
Broker-Dealers), the Company shall:
(i) use its best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements (including, if required by the
Securities Act or any regulation thereunder, financial
statements of any Guarantor) 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 and
related guarantees during the period required by this
Agreement, the Company 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 its 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 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 and
related guarantees 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) 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 or related guarantees for offering or
sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, (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 and
related guarantees under state securities or Blue Sky laws,
the Company and the Guarantors shall use their best efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) furnish without charge to each of the
Initial Purchasers, each selling Holder named in any
Registration Statement, and each of the underwriter(s), if
any, before filing with the
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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), which documents will
be subject to the review of such Holders and underwriter(s) in
connection with such sale, if any, for a period of at least
five business days, and the Company 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 an Initial Purchaser of Transfer Restricted Securities
covered by such Registration Statement or the underwriter(s),
if any, shall reasonably object in writing within five
business days after the receipt thereof (such objection to be
deemed timely made upon confirmation of telecopy transmission
within such period). The objection of an Initial Purchaser or
underwriter, if any, shall be deemed to be reasonable if such
Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) promptly prior to the filing of any document
that is to be incorporated by reference into a Registration
Statement or Prospectus (other than documents filed prior to
the filing of the Registration Statement) , provide copies of
such document to the Initial Purchasers, each selling Holder
named in any Registration Statement, and to the
underwriter(s), if any, make the Company's representatives
available and representatives of the Guarantors 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) make available at reasonable times for
inspection by the Initial Purchasers, each selling Holder, any
managing underwriter participating in any disposition pursuant
to such Registration Statement and any attorney or accountant
retained by such Initial Purchasers, managing underwriter or
any of the underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Company
and the Guarantors and cause the Company's and the Guarantors'
officers, directors 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) 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 Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) 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 financial
statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) 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 may reasonably
request; the Company and the Guarantors 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 and related guarantees covered
by the Prospectus or any amendment or supplement thereto;
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(x) enter into, and cause the Guarantors to
enter into, such agreements (including an underwriting
agreement), and make, and cause the Guarantors to make, such
representations and warranties that are customary in such
transactions and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities and related guarantees
pursuant to any Registration Statement contemplated by this
Agreement, all to such extent as may be reasonably requested
by any Holder of Transfer Restricted Securities or underwriter
in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten
Registration, the Company and the Guarantors shall:
(1) furnish to each selling Holder and each
underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily
made by issuers to underwriters in primary
underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf
Registration Statement:
(A) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration
Statement, as the case may be, signed by (y)
the President or any Vice President and (z) a
principal financial or accounting officer of
each of the Company and the Guarantors,
confirming, as of the date thereof, the matters
set forth in paragraphs (i), (ii) and (iii) of
Section 5(f) of the Purchase Agreement, and
such other matters as such parties may
reasonably request;
(B) opinions, dated the date of
Consummation of the Exchange Offer or the date
of effectiveness of the Shelf Registration
Statement, as the case may be, of outside
counsel for the Company and general counsel for
the Company and the Guarantors, covering the
matters set forth in Sections 5(c) and (d) of
the Purchase Agreement and such other matters
as such parties may reasonably request, and in
any event including a statement to the effect
that each such counsel has participated in
conferences with officers and other
representatives of the Company, representatives
of the independent public accountants for the
Company, 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 Company and 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, and, in the
case of the Exchange Offer Registration
Statement, as of the date of Consummation,
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 and, in
the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the
date of Consummation, 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,
each such counsel may state further that each
such counsel assumes no responsibility for, and
has not independently verified, the accuracy,
completeness or fairness of the financial
9
statements, notes and schedules and other
financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(C) a customary comfort letter, dated
as of the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be,
from the Company's 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, and affirming the
matters set forth in the comfort letters
delivered pursuant to Section 5(a) of the
Purchase Agreement, without exception;
(2) 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
(3) 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 Company or the
Guarantors pursuant to this clause (xi), if any.
If at any time the representations and warranties of the
Company and the Guarantors contemplated in this clause (xi) cease to
be true and correct, the Company or the Guarantors 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;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Guarantors to 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 and related
guarantees under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may 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 and related guarantees covered by the Shelf
Registration Statement; provided, however, that the Company and the
Guarantors shall not be required to register or qualify as a foreign
corporation where they are not then so qualified or to take any
action that would subject them 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 they are not
then so subject;
(xii) shall issue, upon the request of any Holder of
Initial Securities covered by the Shelf Registration Statement,
Exchange Securities guaranteed by the Guarantors and having an
aggregate principal amount equal to the aggregate principal amount of
Initial Securities surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange
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 Initial Securities held by such Holder shall be
surrendered to the Company for cancellation;
(xiii) cooperate with, and cause the Guarantors to 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);
10
(xiv) use its best efforts to cause the Transfer Restricted
Securities and the guarantees thereof 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 (xi) above;
(xv) if any fact or event contemplated by Section
6(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;
(xvi) 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 its
reasonable 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
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a
form eligible for deposit with The Depositary Trust Company;
(xviii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable,
a consolidated earnings 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 Company's
first fiscal quarter commencing after the effective date of the
Registration Statement;
(xix) cause the Indenture to be qualified under the Trust
Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate, and cause the Guarantors to 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 Trust Indenture Act; and to execute
and use its best efforts to cause the Trustee to execute, and cause
the Guarantors 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;
(xx) cause all Transfer Restricted Securities covered by
the Registration Statement to be listed on each securities exchange
on which similar securities issued by the Company are then listed if
requested by the Holders of a majority in aggregate principal amount
of Initial Notes or the managing underwriter(s), if any; 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.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of any notice from the
Company 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
11
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xv) hereof, or until it is advised in writing (the
"Advice") by the Company 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
Company, each Holder will deliver to the Company (at the Company's
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 Company 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; however, no such extension
shall be taken into account in determining whether Liquidated Damages
are due pursuant to Section 5 hereof or the amount of such Liquidated
Damages, it being agreed that the Company's option to suspend use of a
Registration Statement pursuant to this paragraph shall be treated as a
Registration Default for purposes of Section 5.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the
Company and the Guarantors, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by
any Initial Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its
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 Exchange Securities
to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company, the Guarantors and, subject
to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the
Exchange Securities on a national securities exchange or automated
quotation system pursuant to the requirements thereof; and (vi) all
fees and disbursements of independent certified public accountants of
the Company and the Guarantors (including the expenses of any special
audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its
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 Company.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the
Company will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities being tendered in the Exchange Offer
and/or resold pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or registered pursuant to the
Shelf Registration Statement, as applicable, for the reasonable fees
and disbursements of not more than one counsel, who shall be Shearman &
Sterling or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder and (ii) each
person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Holder (any of
the persons referred to in this clause (ii) being hereinafter referred
to as a "controlling person") and (iii) the respective officers,
directors, partners, employees, representatives and agents of any
Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), to the fullest
12
extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing, settling, compromising, paying or
defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Holder),
joint or several, directly or indirectly caused by, related to, based
upon, or arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or any amendment or supplement
thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is
made in reliance upon and in conformity with information relating to
any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Company and the Guarantors may
otherwise have
In case any action or proceeding (including any governmental
or regulatory investigation or proceeding) shall be brought or asserted
against any of the Indemnified Holders with respect to which indemnity
may be sought against the Company or the Guarantors, such Indemnified
Holder (or the Indemnified Holder controlled by such controlling
person) shall promptly notify the Company and the Guarantors in writing
(provided, however, that the failure to give such notice shall not
relieve the Company or the Guarantors of their respective obligations
pursuant to this Agreement). Such Indemnified Holder shall have the
right to employ its own counsel in any such action and the fees and
expenses of such counsel shall be paid, as incurred, by the Company and
the Guarantors (regardless of whether it is ultimately determined that
an Indemnified Holder is not entitled to indemnification hereunder).
The Company and the Guarantors shall not, in connection with any one
such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) at any time for such
Indemnified Holders, which firm shall be designated by the Holders. The
Company shall be liable for any settlement of any such action or
proceeding effected with the Company's prior written consent, which
consent shall not be withheld unreasonably, and the Company agrees to
indemnify and hold harmless any Indemnified Holder from and against any
loss, claim, damage, liability or expense by reason of any settlement
of any action effected with the written consent of the Company. The
Company shall not, without the prior written consent of each
Indemnified Holder, settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened
action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
any Indemnified Holder is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of
each Indemnified Holder from all liability arising out of such action,
claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company
and the Guarantors and their respective directors, officers of the
Company who sign a Registration Statement, and any person controlling
(within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) the Company, and the respective officers,
directors, partners, employees, representatives and agents of each such
person, to the same extent as the foregoing indemnity from the Company
and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such
Holder furnished in writing by such Holder expressly for use in any
Registration Statement. In case any action or proceeding shall be
brought against the Company or its directors or officers or any such
controlling person in respect of which indemnity may be sought against
a Holder of Transfer Restricted Securities, such Holder shall have the
rights and duties given the Company and the Company or its directors or
officers or such controlling person shall have the rights and duties
given to each Holder by the preceding paragraph. In no event shall the
liability of any selling Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of
the Securities giving rise to such indemnification obligation.
13
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b)
hereof (other than by reason of exceptions provided in those Sections)
in respect of any losses, claims, damages, liabilities, judgments,
actions or expenses referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors, on the one hand,
and the Holders, on the other hand, from the Initial Placement (which
in the case of the Company shall be deemed to be equal to the total net
proceeds from the Initial Placement received by the Company and the
Guarantors), the amount of Liquidated Damages which did not become
payable as a result of the filing of the Registration Statement
resulting in such losses, claims, damages, liabilities, judgments
actions or expenses, and such Registration Statement, or if such
allocation is not permitted by applicable law, the relative fault of
the Company and the Guarantors, on the one hand, and of the Indemnified
Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors, on the one hand,
and of the Indemnified Holder, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or
by the Indemnified Holder and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 8(a), any
legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Transfer
Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, 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, none of the Holders
(and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the dollar amount by which
the total discount received by any such Holder with respect to the
Initial Securities exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Initial Securities
held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company and the Guarantors each hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain outstanding,
and during any period the Company (i) is not subject to Section 13 or 15(d) of
the Exchange Act, 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, and (ii) is subject to Section 13 or 15(d) of the
Exchange Act, to make all filings required thereunder in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144A.
14
SECTION 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.
SECTION 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 Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors hereby
agree that monetary 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 Company will not,
and will cause the Guarantors not to, on or after the date of this
Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Neither
the Company nor the Guarantors have entered into any agreement granting
any registration rights with respect to its 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 Company's securities under any agreement in effect on the date
hereof.
(c) Adjustments Affecting the Securities. The Company
will not take any action, or permit any change to occur, with respect
to the Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(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 Company has 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; provided that, with respect to
any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written
consent of each such Initial Purchaser with respect to which such
amendment, qualification, supplement, waiver, consent or departure is
to be effective.
(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), facsimile, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the address set forth on
the records of the Registrar under the Indenture, with a copy
to the Registrar under the Indenture; and
15
(ii) if to the Company and the Guarantors:
Texas Industries, Inc.
1341 West Mockingbird Lane
Dallas, Texas 75247
Attention: General Counsel
with a copy to:
Thompson & Knight LLP
1700 Pacific Avenue
Suite 3300
Dallas, Texas 75201
Attention: Joe Dannenmaier
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if facsimiled;
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.
(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 Purchase Agreement and the DTC Agreement, the Securities, and the
Indenture (each as defined in the Purchase Agreement) 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, warranties or
undertakings, other than those set forth or referred to herein with
respect to the registration rights granted by the Company with respect
to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TEXAS INDUSTRIES, INC.
By: /s/ KENNETH R. ALLEN
--------------------------
Name: Kenneth R. Allen
Title: Vice President and
Treasurer
ATHENS BRICK COMPANY
BROOKHOLLOW CORPORATION
BROOK HOLLOW PROPERTIES, INC.
BROOKHOLLOW OF ALEXANDRIA, INC.
BROOKHOLLOW OF VIRGINIA, INC.
SOUTHWESTERN FINANCIAL CORPORATION,
CHAPARRAL STEEL COMPANY
CHAPARRAL STEEL HOLDINGS, INC.
CHAPARRAL STEEL TRUST
CHAPARRAL STEEL TEXAS, INC.
CHAPARRAL STEEL MIDLOTHIAN, LP
CHAPARRAL (VIRGINIA) INC.
CREOLE CORPORATION
PACIFIC CUSTOM MATERIALS, INC.
RIVERSIDE CEMENT COMPANY
PARTIN LIMESTONE PRODUCTS, INC.
RIVERSIDE CEMENT HOLDINGS COMPANY
TEXAS INDUSTRIES HOLDINGS, INC.
TEXAS INDUSTRIES TRUST
TXI AVIATION, INC.
TXI CALIFORNIA INC.
TXI CEMENT COMPANY
TXI CORP.
TXI OPERATING TRUST
TXI OPERATIONS, LP
TXI POWER COMPANY
TXI RIVERSIDE INC.
TXI STAR RECYCLING LP,
TXI TRANSPORTATION COMPANY
By: /s/ KENNETH R. ALLEN
--------------------------
Name: Kenneth R. Allen
Title: Authorized Officer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
BANC OF AMERICA SECURITIES LLC
UBS WARBURG LLC
BANC ONE CAPITAL MARKETS, INC.
WELLS FARGO SECURITIES, LLC
SUNTRUST CAPITAL MARKETS, INC.
COMERICA SECURITIES, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
HIBERNIA SOUTHCOAST CAPITAL, INC.
BY: BANC OF AMERICA SECURITIES LLC
By: /s/ STEPHAN JAEGER
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Stephan Jaeger
Principal
SCHEDULE A
LIST OF GUARANTORS
Athens Brick Company
Brookhollow Corporation
Brook Hollow Properties, Inc.
Brookhollow of Alexandria, Inc.
Brookhollow of Virginia, Inc.
Southwestern Financial Corporation
Chaparral Steel Company
Chaparral Steel Holdings, Inc.
Chaparral Steel Trust
Chaparral Steel Texas, Inc.
Chaparral Steel Midlothian, LP
Chaparral (Virginia) Inc.
Creole Corporation
Pacific Custom Materials, Inc.
Riverside Cement Company
Partin Limestone Products, Inc.
Riverside Cement Holdings Company
Texas Industries Holdings, Inc.
Texas Industries Trust
TXI Aviation, Inc.
TXI California Inc.
TXI Cement Company
TXI Corp.
TXI Operating Trust
TXI Operations, LP
TXI Power Company
TXI Riverside Inc.
TXI Star Recycling LP
TXI Transportation Company