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REGISTRATION RIGHTS AGREEMENT
Dated as of August 27, 2004
By and Among
THL BUILDCO, INC.,
a Delaware corporation that will be
merged ultimately with and into
NORTEK, INC.,
the GUARANTORS named herein
and
UBS SECURITIES LLC
and
CREDIT SUISSE FIRST BOSTON LLC,
BANC OF AMERICA SECURITIES LLC,
BEAR, STEARNS & CO. INC., and
SOVEREIGN SECURITIES CORPORATION, LLC
as Initial Purchasers
8-1/2% Senior Subordinated Notes due 2014
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TABLE OF CONTENTS
Page
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Section 1. Definitions................................................................................ 1
Section 2. Exchange Offer............................................................................. 4
Section 3. Shelf Registration......................................................................... 8
Section 4. Additional Interest........................................................................ 8
Section 5. Registration Procedures.................................................................... 10
Section 6. Registration Expenses...................................................................... 18
Section 7. Indemnification............................................................................ 19
Section 8. Rules 144 and 144A......................................................................... 22
Section 9. Underwritten Registrations................................................................. 22
Section 10. Miscellaneous.............................................................................. 22
(a) No Inconsistent Agreements................................................................. 22
(b) Adjustments Affecting Registrable Notes.................................................... 23
(c) Amendments and Waivers..................................................................... 23
(d) Notices.................................................................................... 23
(e) Guarantors................................................................................. 24
(f) Successors and Assigns..................................................................... 24
(g) Counterparts............................................................................... 25
(h) Headings................................................................................... 25
(i) GOVERNING LAW.............................................................................. 25
(j) Severability............................................................................... 25
(k) Securities Held by the Issuers or Their Affiliates......................................... 25
(l) Third-Party Beneficiaries.................................................................. 25
(m) Entire Agreement........................................................................... 25
SIGNATURES.................................................................................................. S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
August 27, 2004, by and among THL BUILDCO, INC., a Delaware corporation, ("THL
Buildco") that will be merged ultimately with and into Nortek, Inc., a Delaware
corporation ("Nortek", and together with THL Buildco, the "Company"), and each
of the Guarantors (as defined herein) (THL Buildco, Nortek and the Guarantors
are referred to collectively herein as the "Issuers"), on the one hand, and UBS
SECURITIES LLC (the "Representative") and CREDIT SUISSE FIRST BOSTON LLC, BANC
OF AMERICA SECURITIES LLC and BEAR, STEARNS & CO. INC. (together with the
Representative, the "Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of August 12, 2004, as amended and supplemented, by and
among the Issuers and the Initial Purchasers (the "Purchase Agreement"),
relating to the offering of $625,000,000 aggregate principal amount of 8-1/2%
Senior Subordinated Notes due 2014 (including the guarantees thereof by the
Guarantors, the "Notes"). The execution and delivery of this Agreement is a
condition to the Initial Purchasers' obligation to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c) hereof.
"Additional Interest" shall have the meaning set forth in Section
4(a) hereof.
"Additional Interest Payment Date" shall have the meaning set forth
in Section 4(b) hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first
introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Board of Directors" shall have the meaning set forth in Section 5
hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Company" shall mean (i) prior to the Mergers, THL Buildco, and (ii)
after the Mergers, Nortek.
"Commission" shall mean the Securities and Exchange Commission.
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"day" shall mean a calendar day.
"Delay Period" shall have the meaning set forth in Section 5 hereof.
"Effectiveness Period" shall have the meaning set forth in Section
3(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) hereof.
"Guarantors" shall mean each subsidiary of the Company listed on the
signature page to this Agreement and each Person who executes and delivers a
counterpart of this Agreement after the date hereof pursuant to Section 10(e)
hereof.
"Holder" shall mean any holder of a Registrable Note or Registrable
Notes.
"Indenture" shall mean the Indenture, dated as of August 27, 2004,
by and among the Issuers and U.S. Bank National Association, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the first
introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
hereof.
"Issue Date" shall mean August 27, 2004, the date of original
issuance of the Notes.
"Issuers" shall have the meaning set forth in the first introductory
paragraph hereto.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"Losses" shall have the meaning set forth in Section 7(a) hereof.
"Mergers" shall have the meaning provided for such term in the
Purchase Agreement.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Notes" shall have the meaning set forth in the second introductory
paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a)
hereof.
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"Participating Broker-Dealer" shall have the meaning set forth in
Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section 2(b)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(b) hereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the second
introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n) hereof.
"Registrable Notes" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(ii)(B) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(ii)(B) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in Section
4(a) hereof.
"Registration Statement" shall mean any appropriate registration
statement of the Issuers covering any of the Registrable Notes filed with the
Commission under the Securities Act, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
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"Representative" shall have the meaning set forth in the first
introductory paragraph hereto.
"Requesting Participating Broker-Dealer" shall have the meaning set
forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in Section
2(c) hereof.
"Shelf Registration" shall have the meaning set forth in Section
3(a) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the trustee
(if different than the trustee under the Indenture) under any indenture
governing the Exchange Notes and Private Exchange Notes.
"underwritten registration" or "underwritten offering" shall mean a
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
Section 2. Exchange Offer
(a) Unless the Exchange Offer would violate applicable law or
interpretation of the staff of the Commission, the Issuers shall (i) file a
Registration Statement (the "Exchange Offer Registration Statement") with the
Commission on an appropriate registration form with respect to a registered
offer (the "Exchange Offer") to exchange any and all of the Registrable Notes
for a like aggregate principal amount of notes (including the guarantees with
respect thereto, the "Exchange Notes") that are identical in all material
respects to the Notes (except that the Exchange Notes shall not contain
restrictive legends, terms with respect to transfer restrictions or Additional
Interest upon a Registration Default) on or prior to 180 days after the Issue
Date, (ii) use their reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act
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on or prior to 240 days after the Issue Date and (iii) use their reasonable best
efforts to consummate the Exchange Offer within 280 days after the Issue Date.
Upon the Exchange Offer Registration Statement being declared effective by the
Commission, the Issuers will offer the Exchange Notes in exchange for surrender
of the Notes. The Issuers shall keep the Exchange Offer open for not less than
30 days (or longer if required by applicable law) after the date notice of the
Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Issuers in writing that (i) any Exchange Notes to be
acquired in the Exchange Offer will be acquired in the ordinary course of
business of the person receiving such Exchange Notes, whether or not such
recipient is such Holder itself, (ii) it has no arrangement or understanding
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes in violation of the provisions of the
Securities Act, (iii) it is not an affiliate of the Company or any Guarantor as
defined by Rule 405 of the Securities Act or, if it is such an affiliate, it
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes and (v) if such Holder is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
comply with the applicable provision of the Securities Act (including, but not
limited to, the prospectus delivery requirements thereunder) in connection with
any resale of such Exchange Notes.
(b) The Issuers and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any broker-dealer that
elects to exchange Notes that were acquired by such broker-dealer for its own
account as a result of market-making or other trading activities for Exchange
Notes in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Issuers and the Initial Purchasers also acknowledge that the
staff of the Commission has taken the position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuers agree to
use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period necessary to comply with
applicable law in connection with such resales but in no event more than 180
days after the date on which the Exchange Registration Statement is declared
effective, or such longer period if extended pursuant to any Delay Period in
accordance with the penultimate paragraph of Section 5 hereof (such period, the
"Applicable Period"), or such earlier date as each Requesting Participating
Broker-Dealer
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shall have notified the Company in writing that such Requesting Participating
Broker-Dealer has resold all Exchange Notes acquired by it in the Exchange
Offer. The Issuers shall include a plan of distribution in such Exchange Offer
Registration Statement that meets the requirements set forth in the immediately
preceding paragraph.
If, prior to consummation of the Exchange Offer, any Initial
Purchaser or any other Holder holds any Notes acquired by it that have, or that
are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuers upon the request of the Initial
Purchasers or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchasers or any such Holder, as the case may be, in exchange (the
"Private Exchange") for such Notes held by such Initial Purchaser or any such
Holder a like principal amount of notes (the "Private Exchange Notes") of the
Issuers that are identical in all material respects to the Exchange Notes except
that the Private Exchange Notes may be subject to restrictions on transfer and
bear a legend to such effect. The Private Exchange Notes shall be issued
pursuant to the same indenture as the Exchange Notes and bear the same CUSIP
number as the Exchange Notes (if permitted by the CUSIP Service Bureau).
Upon consummation of the Exchange Offer in accordance with this
Section 2, the Issuers shall have no further registration obligations other than
the Issuers' continuing registration obligations with respect to (i) Private
Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and
(iii) Notes or Exchange Notes as to which clause (c)(iv) of this Section 2
applies.
In connection with the Exchange Offer, the Issuers shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn by the Holders pursuant to the Exchange Offer and the Private
Exchange, if any;
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(2) deliver or cause to be delivered to the Trustee for cancellation
all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
such Holder of Notes, Exchange Notes or Private Exchange Notes, as the
case may be, equal in principal amount to the Registrable Notes of such
Holder so accepted for exchange; provided that, in the case of any Notes
held in global form by a depositary, authentication and delivery to such
depositary of one or more replacement Notes in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuers to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuers and (iii) all governmental approvals shall have been obtained, which
approvals the Company deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture (in either case, with such changes as are necessary to comply
with any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indenture and (b) the Private Exchange
Notes shall be subject to the transfer restrictions set forth in the Indenture.
The Indenture or such indenture shall provide that the Exchange Notes, the
Private Exchange Notes and the Notes shall vote and consent together on all
matters as one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate class on
any matter.
(c) In the event that (i) because of any change in law or in
currently prevailing interpretations of the staff of the Commission, the Issuers
are not permitted to effect the Exchange Offer, or (ii) the Initial Purchasers
or any other Holder of Notes notifies the Company in writing within 20 days
after the consummation of the Exchange Offer that (A) it is prohibited by law or
Commission policy from participating in the Exchange Offer, (B) that it may not
resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resales or
(C) that it is a broker-dealer and owns Notes acquired directly from the Company
or an affiliate of the Company (each such event referred to in clauses (i) or
(ii) of this sentence, a "Shelf Filing Event"), then the Issuers shall file a
Shelf Registration pursuant to Section 3 hereof.
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Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes not exchanged
in the Exchange Offer, Private Exchange Notes and Exchange Notes as to
which Section 2(c)(ii)(B) is applicable (the "Shelf Registration"). The
Shelf Registration shall be on an appropriate form permitting registration
of such Registrable Notes for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more
underwritten offerings). The Issuers shall not permit any securities other
than the Registrable Notes to be included in the Shelf Registration.
(b) The Issuers shall (x) cause the Shelf Registration to be filed
with the Commission on or prior to 180 days after the date of the Shelf
Filing Event giving rise to the obligation to file the Shelf Registration
and shall use their reasonable best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior
to the 240th day after the date of the Shelf Filing Event giving rise to
the obligation to file the Shelf Registration and (y) to keep the Shelf
Registration continuously effective under the Securities Act for the
period ending on the date which is two years from the Issue Date, subject
to extension pursuant to the penultimate paragraph of Section 5 hereof
(the "Effectiveness Period"), or such shorter period ending when all
Registrable Notes covered by the Shelf Registration have been sold in the
manner set forth and as contemplated in the Shelf Registration; provided,
however, that (i) the Effectiveness Period in respect of the Shelf
Registration shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174
under the Securities Act and as otherwise provided herein and (ii) the
Company may suspend the effectiveness of the Shelf Registration by written
notice to the Holders solely (A) as a result of the filing of a
post-effective amendment to the Shelf Registration to incorporate annual
audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related Prospectus or (B) to the
extent and for so long as permitted by the penultimate paragraph of
Section 5.
(c) Supplements and Amendments. The Issuers agree to supplement or
make amendments to the Shelf Registration as and when required by the
rules, regulations or instructions applicable to the registration form
used for such Shelf Registration or by the Securities Act or rules and
regulations thereunder for shelf registration, or if reasonably requested
by the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
Section 4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree that if:
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(i) the Exchange Offer Registration Statement has not been filed on
or prior to the 180th day following the Issue Date, or, if that day is not
a Business Day, the next day that is a Business Day, or
(ii) the Exchange Offer Registration Statement has not been declared
effective on or prior to the 240th day following the Issue Date, or, if
that day is not a Business Day, the next day that is a Business Day, or
(iii) the Exchange Offer is not consummated on or prior to the 280th
day following the Issue Date, or, if that day is not a Business Day, the
next day that is a Business Day; or
(iv) the Shelf Registration is required to be filed but is not
declared effective within the time period specified in Section 3(b)(x), or
(v) the Exchange Offer Registration Statement or Shelf Registration,
as the case may be, is declared effective by the date required hereunder
but thereafter ceases to be effective or usable during the Applicable
Period, with respect to an Exchange Offer Registration Statement, or the
Effectiveness Period, with respect to a Shelf Registration (unless the
Exchange Offer Registration Statement or Shelf Registration, as the case
may be, ceases to be effective or usable as specifically permitted by the
penultimate paragraph of Section 5 hereof),
(each such event referred to in clauses (i)-(v) a "Registration Default"),
additional interest in the form of additional cash interest ("Additional
Interest") will accrue on the affected Registrable Notes. The rate of Additional
Interest will be 0.25% per annum for the first 90-day period immediately
following the occurrence of a Registration Default, increasing by an additional
0.25% per annum with respect to each subsequent 90-day period up to a maximum
amount of Additional Interest of 1.00% per annum, from and including the date on
which any such Registration Default shall occur to, but excluding, the earlier
of (1) the date on which all Registration Defaults have been cured or (2) the
date on which such Registrable Note ceases to be a Registrable Note or otherwise
become freely transferable by Holders other than affiliates of the Issuers
without further registration under the Securities Act. If, after the cure of all
Registration Defaults then in effect, there is a subsequent Registration
Default, the rate of Additional Interest for such subsequent Registration
Default shall initially be 0.25% regardless of the rate in effect with respect
to any prior Registration Default at the time of cure of such Registration
Default and shall increase in the manner and be subject to the maximum
Additional Interest rate contained in the preceding sentence.
Notwithstanding the foregoing, (1) the amount of Additional Interest
payable shall not increase because more than one Registration Default has
occurred and is pending and (2) a Holder of Registrable Notes that is not
entitled to the benefits of the Shelf Registration (e.g., such Holder has not
elected to include information) shall not be entitled to Additional Interest
with respect to a Registration Default that pertains to the Shelf Registration.
(b) So long as Notes remain outstanding, the Company shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Additional Interest is required to be paid. Any
amounts of Additional Interest due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each March
1
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and September 1 (each an "Additional Interest Payment Date"), commencing with
the first such date occurring after any such Additional Interest commences to
accrue, to Holders to whom regular interest is payable on such Additional
Interest Payment Date with respect to Notes that are Registrable Notes. The
amount of Additional Interest for each Registrable Note will be determined by
multiplying the applicable rate of Additional Interest by the aggregate
principal amount of such Registrable Note outstanding on the Additional Interest
Payment Date following such Registration Default in the case of the first such
payment of Additional Interest with respect to a Registration Default (and
thereafter at the next succeeding Additional Interest Payment Date until the
cure of such Registration Default), and multiplying the product of the foregoing
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed), and the denominator of which is 360.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder, the Issuers
shall:
(a) Use their reasonable best efforts to prepare and file with the
Commission the Registration Statement or Registration Statements
prescribed by Section 2 or 3 hereof, and use their reasonable best efforts
to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, however, that, if (1) such filing
is pursuant to Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Issuers shall
furnish to and afford the Holders of the Registrable Notes covered by such
Registration Statement or each such Participating Broker-Dealer, as the
case may be, their counsel (if requested by any such person) and the
managing underwriters, if any, a reasonable opportunity to review copies
of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed (in each case at least five Business Days prior to such filing). The
Issuers shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, their counsel, or the managing underwriters, if any, shall
reasonably object.
(b) Use their reasonable best efforts to prepare and file with the
Commission such amendments and post-effective amendments to each Shelf
Registration or Exchange Offer Registration Statement, as the case may be,
as may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period or the Applicable Period, as the
case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the
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applicable provisions of the Securities Act and the Exchange Act with
respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus, in each case,
in accordance with the intended methods of distribution set forth in such
Registration Statement or Prospectus, as so amended or supplemented.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom the Company has received written notice that such Participating
Broker-Dealer will be a Participating Broker-Dealer in the applicable
Exchange Offer, notify the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, their counsel (if
such counsel is known to the Issuers) and the managing underwriters, if
any, as promptly as possible, and, if requested by any such Person,
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect
to a Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Issuers, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when
a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the representations and warranties
of the Issuers contained in any agreement (including any underwriting
agreement) contemplated by Section 5(m) hereof cease to be true and
correct in all material respects, (iv) of the receipt by any of the
Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement
or any of the Registrable Notes or the Exchange Notes for offer or sale in
any jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known to any Issuer that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes
in or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
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(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their reasonable
best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes, as the case may be, for sale in any jurisdiction, and, if
any such order is issued, to use their reasonable best efforts to obtain
the withdrawal of any such order at the earliest practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if requested by the
managing underwriter or underwriters (if any), the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or any Participating Broker-Dealer, as the case may
be, (i) promptly incorporate in such Registration Statement or Prospectus
a prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders or any
Participating Broker-Dealer, as the case may be (based upon advice of
counsel), determine is reasonably required to be included therein and (ii)
make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; provided, however, that the
Issuers shall not be required to take any action hereunder that would, in
the written opinion of counsel to the Issuers, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, who so requests, their counsel (if requested by any such
person) and each managing underwriter, if any, at the sole expense of the
Issuers, one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, their respective counsel (if requested) and the
underwriters, if any, at the sole expense of the Issuers, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by ref-
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erence therein as such Persons may reasonably request; and, subject to the
last paragraph of this Section 5, the Issuers hereby consent to the use of
such Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any,
and dealers (if any), in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their reasonable
best efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, the managing underwriter or underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Notes or Exchange Notes, as the case may be, for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably
request; provided, however, that where Exchange Notes or Registrable Notes
are offered other than through an underwritten offering, the Issuers agree
to cause the Issuers' counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Exchange Notes or Registrable Notes covered by the
applicable Registration Statement; provided, however, that no Issuer shall
be required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would subject
it to general service of process in any such jurisdiction where it is not
then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or selling
Holders may request at least two Business Days prior to any sale of such
Registrable Notes.
(j) Use their reasonable best efforts to cause the Registrable Notes
or Exchange Notes covered by any Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes or Exchange Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Issuers will cooperate in all
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reasonable respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) and the penultimate
paragraph of this Section 5) file with the Commission, at the sole expense
of the Issuers, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference,
or file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer, any such Prospectus will not 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,
in the light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to expedite
or facilitate the registration or the disposition of such Registrable
Notes and, whether or not such offering is an underwritten offering, (i)
make such representations and warranties to the managing underwriter or
underwriters, if any, (and to any Holder that has advised the Company that
such Holder may have a "due diligence" defense under Section 11 of the
Securities Act), and covenants with, the underwriters with respect to the
business of the Issuers and their subsidiaries (including any acquired
business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made
by issuers to underwriters in underwritten offerings of debt securities
similar to the Notes, and confirm the same in writing if and when
reasonably requested; (ii) use their reasonable best efforts to obtain the
written opinions of counsel to the Issuers and written updates thereof in
form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters (and to any
Holder that has advised the Company that such Holder may have a "due
diligence" defense under Section 11 of the Securities Act) covering the
matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
managing underwriter or underwriters; (iii) use their reasonable best
efforts to obtain "cold comfort" letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public
-15-
accountants of the Issuers (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 or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters (and to any Holder that has advised the Company that such
Holder may have a "due diligence" defense under Section 11 of the
Securities Act), such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof (or
such other provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section; provided that the Issuers shall not be required to provide
indemnification to any underwriter selected in accordance with the
provisions of Section 9 hereof with respect to information relating to
such underwriter furnished in writing to the Company by or on behalf of
such underwriter expressly for inclusion in such Registration Statement;
provided, further that the Company shall not be required to enter into
more than two such underwriting agreements with respect to underwritten
offerings of Registrable Notes. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required
thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and
any attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Company and
its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement and Prospectus. Each Inspector shall agree in writing that it
will keep the Records confidential and that it will not disclose, or use
in connection with any market transactions in violation of any applicable
securities laws, any Records that the Company determines, in good faith,
to be confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration Statement
or Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is necessary or advisable in the opinion of
counsel for an Inspector in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or there-
-16-
under, or (iv) the information in such Records has been made generally
available to the public; provided, however, that (i) each Inspector shall
agree to use reasonable best efforts to provide notice to the Company of
the potential disclosure of any information by such Inspector pursuant to
clause (i), (ii) or (iii) of this sentence to permit the Issuers to obtain
a protective order (or waive the provisions of this paragraph (n)) and
(ii) each such Inspector shall take such actions as are reasonably
necessary to protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not inconsistent with,
an impairment of or in derogation of the rights and interests of the
Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof to be qualified under the
TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes or Exchange Notes, as applicable,
to effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use their reasonable best efforts to cause such trustee to
execute, all documents as 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.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Company's securityholders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) after the end of any 12-month period no later
than the number of days permitted for the filing of Quarterly Reports on
Form 10-Q by accelerated filers (as defined in the Exchange Act) (or after
the end of any 12-month period if such period is a fiscal year no later
than the number of days permitted for the filing of Annual Reports on Form
10-K by accelerated filers (as defined in the Exchange Act)) (i)
commencing at the end of any fiscal quarter in which Registrable Notes or
Exchange Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer or a Private Exchange, use their reasonable best efforts to obtain
an opinion of counsel to the Issuers, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange
Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Issuers, enforceable against the
Issuers in accordance with its respective terms, subject to customary
exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Notes or the Private Exchange Notes, as the
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case may be, mark, or cause to be marked, on such Registrable Notes that
such Registrable Notes are being cancelled in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be; provided that in
no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the NASD.
(t) Use their reasonable best efforts to take all other steps
reasonably necessary or advisable to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Company
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Registrable Notes of
any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and, in the event of such an
exclusion, the Issuers shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make any
information previously furnished to the Company by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company or the Guarantors, then
such Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such Holder, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company or the
Guarantors, or (ii) in the event that such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such Holder in any amendment or
supplement to the applicable Registration Statement filed or prepared subsequent
to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon the Company providing notice to such Holder or Participating
Broker-Dealer, as the case may be, (x) of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v) hereof, or (y)
that the Board of Directors of the Company (the "Board of Directors") has
resolved that the Company has a bona fide business purpose for doing so, then,
upon providing such notice (which shall refer to the penultimate paragraph of
this Section 5), the Issuers may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration (if not then
filed or effective, as applicable) and shall not be required to maintain the
effectiveness thereof or amend or supplement the Exchange Offer
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Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Issuers'
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Company notifies
the Holders of such good faith determination. There shall not be more than 60
days of Delay Periods during any 12-month period. The maximum length of the
Applicable Period set forth in Section 2(b) shall be extended by a number of
days equal to the number of days during any Delay Period. Any Delay Period will
not alter the obligations of the Issuers to pay Additional Interest under the
circumstances set forth in Section 4 hereof.
Each Holder or Participating Broker-Dealer, by its acceptance of any
Registrable Note, agrees that during any Delay Period, each Holder or
Participating Broker-Dealer will discontinue disposition of such Notes or
Exchange Notes covered by such Registration Statement or Prospectus or Exchange
Notes to be sold by such Holder or Participating Broker-Dealer, as the case may
be.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers (other than any underwriting discounts or
commissions) shall be borne by the Issuers, whether or not the Exchange Offer
Registration Statement or the Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Notes or Exchange Notes and determination
of the eligibility of the Registrable Notes or Exchange Notes for investment
under the laws of such jurisdictions (x) where the holders of Registrable Notes
are located, in the case of an Exchange Offer, or (y) as provided in Section
5(h) hereof, in the case of a Shelf Registration or in the case of Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the Holders of a majority in aggregate principal
amount of the Registrable Notes included in any Registration Statement or in
respect of Exchange Notes to be sold by any Participating Broker-Dealer during
the Applicable Period, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuers and
the reasonable fees and disbursements of one special counsel for all of the
sellers of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof) selected by the Holders of a majority in aggregate principal
amount of Notes, Exchange Notes and Private Exchange Notes being registered and
reasonably satisfactory to the Issuers, (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(m)(iii) hereof
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) Securities
Act liability insurance, if the Issuers desire such insurance, (vii) fees and
expenses of all other Persons retained by
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any of the Issuers, (viii) internal expenses of the Issuers (including, without
limitation, all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (ix) the expense of any annual audit,
(x) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a
rating of the securities, in each case, if applicable, (xi) any required fees
and expenses incurred in connection with any filing required to be made with the
NASD and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
Notwithstanding the foregoing or anything to the contrary, each Holder shall pay
all underwriting discounts and commissions of any underwriters with respect to
any Registrable Notes sold by or on behalf of it.
Section 7. Indemnification
(a) The Issuers, jointly and severally, agree to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, each Person, if any, who
controls any such Person within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, the agents, employees, officers and
directors of each Holder and each such Participating Broker-Dealer and the
agents, partners, members, employees, officers, managers and directors of any
such controlling Person (each, a "Participant") from and against any and all
losses, liabilities, claims, damages and expenses whatsoever (including, but not
limited to, reasonable attorneys' fees and any and all reasonable expenses
whatsoever actually incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all reasonable amounts paid in settlement of any claim or litigation)
(collectively, "Losses") to which they or any of them may become subject under
the Securities Act, the Exchange Act or otherwise insofar as such Losses (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 any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the case of the
Prospectus, in the light of the circumstances under which they were made, not
misleading, provided that (i) the foregoing indemnity shall not be available to
any Participant insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the
Company in writing by or on behalf of such Participant expressly for use
therein, and (ii) the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Participant from whom the
Person asserting such Losses purchased Registrable Notes if (x) it is
established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such amendment or
supplement was furnished to such Participant prior to the written confirmation
of such sale) to such Person with or prior to the written confirmation of such
sale, if required by applicable law, and (y) the untrue statement or omission or
alleged untrue statement or omission was completely corrected in the Prospectus
(as amended or supplemented if amended or supplemented as aforesaid) and such
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission that was the subject matter of the related
proceeding. This indemnity agreement will be in addition to any liability that
the Issuers may otherwise have, including, but not limited to, liability under
this Agreement. Notwithstanding anything to the contrary contained herein,
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any costs or expenses advanced by the Issuers to any Participant pursuant to the
terms of this Section 7(a) shall be promptly reimbursed to the extent that such
Participant is ultimately determined not to have been entitled to
indemnification therefor.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless each Issuer, each Person, if any, who controls any Issuer
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, and each of their respective agents, partners, members, employees,
officers and members of the board of directors from and against any Losses to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise insofar as such Losses (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 any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information relating to
such Participant furnished in writing to the Company by or on behalf of such
Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under subsection
7(a) or 7(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "action"), such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action and, to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel and the payment of such fees and expenses by
the indemnifying party shall have been authorized and agreed to in writing by
the indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of such
counsel shall be borne by the indemnifying
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parties. In no event shall the indemnifying party be liable for the reasonable
fees and expenses of more than one counsel (together with appropriate local
counsel) at any time for all indemnified parties in connection with any one
action or separate but substantially similar or related actions arising in the
same jurisdiction out of the same general allegations or circumstances. Any such
separate firm for the Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Notes sold by all
such Participants and shall be reasonably acceptable to the Company and any such
separate firm for the Issuers, their affiliates, officers, directors,
representatives, employees and agents and such control Person of such Issuers
shall be designated in writing by such Issuers and shall be reasonably
acceptable to the Holders. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent, which
consent may not be unreasonably withheld. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement (x) includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding and (y) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party for any Losses referred to therein, or
is insufficient to hold harmless a party indemnified under this Section 7 for
any Losses referred to therein, each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such aggregate
Losses (i) in such proportion as is appropriate to reflect the relative benefits
received by each indemnifying party, on the one hand, and each indemnified
party, on the other hand, from the sale of the Notes to the Initial Purchasers
or the resale of the Registrable Notes by such Holder, as applicable, or (ii) if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of each indemnified party, on the one hand,
and each indemnifying party, on the other hand, in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers, on the one hand, and each Participant, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the sale of
the Notes to the Initial Purchasers (net of discounts and commissions but before
deducting expenses) received by the Issuers are to (y) the total net profit
received by such Participant in connection with the sale of the Registrable
Notes. 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
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers or such Participant and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been
-22-
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission and (ii) 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. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent; provided, however, that such written consent was not
unreasonably withheld.
Section 8. Rules 144 and 144A
The Issuers covenant that they will file the reports required, if
any, to be filed by them under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuers are not required to file such reports, they will,
upon the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuers further covenant that for so long as any
Registrable Notes remain outstanding they will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and shall not, after the date of this Agreement, enter into any
agreement with respect to any of their securi-
-23-
ties that is inconsistent with the rights granted to the Holders of Registrable
Notes in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not conflict with and are not
inconsistent with, in any material respect, the rights granted to the holders of
any of the Issuers' other issued and outstanding securities under any such
agreements. The Issuers have not entered and will not enter into any agreement
with respect to any of their securities which will grant to any Person
piggy-back registration rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (I) the Company (on behalf of all Issuers) and
(II)(A) the Holders of not less than a majority in aggregate principal amount of
the then outstanding Registrable Notes and (B) in circumstances that would
adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented except pursuant to a written agreement duly signed and delivered by
the Issuers and each Holder and each Participating Broker-Dealer (including any
Person who was a Holder or Participating Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification, waiver or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
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(ii) if to any Issuer, to it:
c/o Nortek, Inc.
50 Kennedy Plaza
Providence, RI 02903
Fax: (401) 751-9844
Attention: Chief Financial Officer
with a copy to:
Ropes & Gray LLP
One International Place
Boston, MA 02110
Fax: (617) 951-7050
Attention: David C. Chapin, Esq.
(iii) if to the Initial Purchasers, at the address as follows:
UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Fax number: (203) 719-1075
Attention: High Yield Syndicate Department
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Guarantors. So long as any Registrable Notes remain outstanding,
the Issuers shall cause each Person that becomes a guarantor of the Notes under
the Indenture to execute and deliver a counterpart to this Agreement which
subjects such Person to the provisions of this Agreement as a Guarantor. Each of
such Guarantors agrees to join the Issuers in all of their undertakings
hereunder to effect the Exchange Offer for the Exchange Notes and the filing of
any Shelf Registration required hereunder.
(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
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that this Agreement shall not inure to the benefit of or be binding
-25-
upon a successor or assign of a Holder unless and to the extent such successor
or assign holds Registrable Notes.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO
ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW EXCEPT SECTION 1504-1 OF THE
NEW YORK GENERAL OBLIGATIONS LAW).
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or any of their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
THL BUILDCO, INC.
By: _______________________________________
Name:
Title:
The undersigned hereby executes this
acknowledgment upon the consummation of the
Mergers and hereby acknowledges that it
succeeded by operation of law to all of the
rights and obligations of THL Buildco set
forth herein effective upon the
consummation of the Mergers.
Nortek, Inc. (as successor by merger to THL
Buildco, Inc. and Nortek Holdings, Inc.)
By: _______________________________________
Name:
Title:
AUBREY MANUFACTURING, INC.
COMMERCIAL ENVIRONMENTAL SYTEMS
GROUP, INC.
DMU BUTLER INC.
GOVERNAIR CORPORATION
J.A.R. INDUSTRIES, INC.
JENSEN INDUSTRIES, INC.
MAMMOTH, INC.
MAMMOTH CHINA LTD.
MULTIPLEX TECHNOLOGY, INC.
NORDYNE INC.
NUTONE INC.
OMNIMOUNT SYSTEMS, INC.
OPERATOR SPECIALTY COMPANY, INC.
RANGAIRE GP, INC.
RANGAIRE LP, INC.
SPEAKERCRAFT, INC.
TEMTROL, INC.
WEBCO, INC.
XANTECH CORPORATION, as Guarantors
By:___________________________
Edward J. Cooney
Vice President and Treasurer
of each of the above-named corporations
BROAN-NUTONE LLC.,
a Delaware limited liability company,
as Guarantor
By: Nortek, Inc., its sole member
By: ___________________________
Edward J. Cooney
Vice President and Treasurer
ELAN HOME SYSTEMS, L.L.C.,
a Kentucky limited liability company,
as Guarantor
By: Linear LLC, its sole member
By: WDS LCC, its sole member
By: Nortek, Inc., its sole member
By: ___________________________
Edward J. Cooney
Vice President and Treasurer
LINEAR H.K. LLC,
a Delaware limited liability company,
as Guarantor
By: Linear LLC, its sole member
By: WDS LCC, its sole member
By: Nortek, Inc., its sole member
By: ___________________________
Edward J. Cooney
Vice President and Treasurer
LINEAR LLC,
a California limited liability company,
as Guarantor
By: WDS LLC, its sole member
By: Nortek, Inc., its sole member
By: ___________________________
Edward J. Cooney
Vice President and Treasurer
RANGAIRE LP,
a Delaware limited partnership,
as Guarantor
By: Rangaire GP, Inc., its general
partner
By: ___________________________
Edward J. Cooney
Vice President and Treasurer
WDS LLC,
a Delaware limited liability company,
as Guarantor
By: Nortek, Inc., its sole member
By: ___________________________
Edward J. Cooney
Vice President and Treasurer
UBS SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
SOVEREIGN SECURITIES CORPORATION, LLC
By: UBS SECURITIES LLC, as Representative
of the Initial Purchasers
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title: