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REGISTRATION RIGHTS AGREEMENT
Dated as of May 28, 2003
Among
GRAHAM PACKAGING COMPANY, L.P.
and
GPC CAPITAL CORP. I,
as Issuers
and
THE GUARANTOR NAMED HEREIN
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
and
CITICORP NORTH AMERICA INC.
as Selling Noteholders
and
DEUTSCHE BANK SECURITIES INC.
and
CITIGROUP GLOBAL MARKETS INC.,
as Initial Purchasers
$100,000,000 8 3/4% Senior Subordinated Notes Due 2008
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of May
28, 2003, among GRAHAM PACKAGING COMPANY, L.P., a Delaware limited partnership
(the "Operating Company"), and GPC CAPITAL CORP. I, a Delaware corporation, as
issuers (the "Company Issuers"), and DEUTSCHE BANK TRUST COMPANY AMERICAS and
CITICORP NORTH AMERICA INC. as selling noteholders (the "Selling Noteholders"),
GRAHAM PACKAGING HOLDINGS COMPANY, a Pennsylvania limited partnership
("Holdings"), as guarantor (the "Guarantor," and together with the Company
Issuers, the "Issuers"), and DEUTSCHE BANK SECURITIES INC. and CITIGROUP GLOBAL
MARKETS INC., as initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of May 22, 2003, among the Issuers, Deutsche Bank Trust Company
Americas ("DBTCA") and Citicorp North America Inc. ("Citi" and, together with
DBTCA, the "Selling Noteholders") and the Initial Purchasers (the "Purchase
Agreement"), which provides for, among other things, the sale by the Selling
Noteholders to the Initial Purchasers of $100,000,000 aggregate principal amount
of the Company Issuers' 8 3/4% Senior Subordinated Notes Due 2008 (the "Notes"),
unconditionally guaranteed on a senior subordinated basis by the Guarantor (the
"Guarantee"). The Notes and the Guarantee are collectively referred to as the
"Securities." In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and,
except as otherwise set forth herein, any subsequent holder or holders of 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:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4 hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
Company Issuers: See the introductory paragraphs hereto.
Effectiveness Date: The 260th day after the Issue Date; provided, however,
that with respect to any Shelf Registration, the Effectiveness Date shall be the
120th day after the Filing Date with respect thereto.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2 hereof.
Exchange Offer: See Section 2 hereof.
Exchange Offer Registration Statement: See Section 2 hereof.
Filing Date: (A) With respect to the Exchange Offer Registration Statement,
the 180th day after the Issue Date; and (B) with respect to a Shelf Registration
Statement, the 60th day after the delivery of a Shelf Notice as required
pursuant to Section 2(c) hereof.
Guarantee: The Guarantee (as defined in the introductory paragraphs) or any
guarantee by Holdings on substantially identical terms of any Exchange Notes or
Private Exchange Notes.
Guarantor: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Holdings: See the introductory paragraphs hereto.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of February 2, 1998, by and among the
Issuers and The Bank of New York [(formerly United States Trust Company of New
York], as Trustee, pursuant to which the Securities are being issued, as the
same may be amended or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(m) hereof.
Issue Date: May 28, 2003, the date of original issuance of the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(r) hereof.
Notes: See the introductory paragraphs hereto.
Offering Memorandum: The final offering memorandum of the Issuers dated May
22, 2003, as supplemented, in respect of the offering of the Securities by the
Selling Noteholders.
Operating Company: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, trustee, corporation, partnership, limited liability
company, joint stock company, trust, unincorporated association, union, business
association, firm or other legal entity.
Private Exchange: See Section 2 hereof.
Private Exchange Notes: See Section 2 hereof.
Prospectus: 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 and any term sheet filed pursuant to Rule
434 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: See the introductory paragraphs hereof.
Records: See Section 5(m) hereof.
Registrable Notes: Each Note (and the related Guarantee) upon its original
issuance and at all times subsequent thereto, each Exchange Note (and the
related Guarantee) as to which Section 2(c)(iv) hereof is applicable upon
original issuance and at all times subsequent thereto and each Private Exchange
Note (and the related Guarantee) upon original issuance thereof and at all times
subsequent thereto, until (i) a Registration Statement (other than, with respect
to any Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Security, Exchange Note or
Private Exchange Note (and the related Guarantee) has been declared effective by
the SEC and such Security, Exchange Note or such Private Exchange Note (and the
related Guarantee), 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 Private Exchange Note
(and, in each case, the related Guarantee) that may be resold without
restriction under state and federal securities laws, (iii) such Security,
Exchange Note or Private Exchange Note (and, in each case, the related
Guarantee), as the case may be, ceases to be outstanding for purposes of the
Indenture
or (iv) such Security, Exchange Note or Private Exchange Note (and, in each
case, the related Guarantee), as the case may be, may be resold without
restriction pursuant to Rule 144 under the Securities Act.
Registration Statement: Any registration statement of the Issuers that
covers any of the Notes, the Exchange Notes or the Private Exchange Notes (and,
in each case, the related Guarantee) filed with the SEC under the Securities
Act, including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: 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 SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of the issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: 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 SEC.
Rule 415: 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 SEC.
SEC: The Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
Suspension Period: See Section 5(j) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if any) under any
indenture governing the Exchange Notes and Private Exchange Notes (and, in each
case, the related Guarantee).
Underwritten registration or underwritten offering: A registration in which
securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
(a) The Issuers shall use their reasonable best efforts to file with the
SEC, no later than the Filing Date, a Registration Statement (the "Exchange
Offer Registration Statement") on an appropriate registration form with respect
to a registered offer (the "Exchange Offer") to exchange any and all of the
Securities for a like aggregate principal amount of notes of the Company Issuers
(the "Exchange Notes"), guaranteed by the Guarantor, that are identical in all
material respects to the Securities and shall have terms (including a Guarantee)
substantially identical to the terms of the Securities, (except that the
Exchange Notes shall not contain terms with respect to transfer restrictions and
shall contain no restrictive legend thereon and which shall be entitled to the
benefits of the Indenture or a trust indenture which is identical in all
material respects to the Indenture (other than such changes to the Indenture or
any such identical trust indenture as are necessary to comply with the TIA) and
which, in either case, has been qualified under the TIA. The Exchange Offer
shall comply with all applicable tender offer rules and regulations under the
Exchange Act and other applicable law. The Issuers shall use their reasonable
best efforts to (x) cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness Date
applicable thereto; (y) keep the Exchange Offer open for not less than 20
business days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) consummate the
Exchange Offer on or prior to the later of the 290th day following the Issue
Date. If, after the Exchange Offer Registration Statement is initially declared
effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes
thereunder is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, the Exchange
Offer Registration Statement shall be deemed not to have become effective for
purposes of this Agreement.
Each Holder that participates in the Exchange Offer will be required, as a
condition to its participation in the Exchange Offer, to represent to the
Issuers in writing (which may be contained in the applicable letter of
transmittal) (i) that any Exchange Notes to be received by it will be acquired
in the ordinary course of its business, (ii) that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act, (iii) that such
Holder is not an affiliate of any of the Issuers within the meaning of the
Securities Act, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the 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, that it will deliver a prospectus
in connection with any resale of such Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this Section 2,
the provisions of this Agreement shall continue to apply, mutatis mutandis,
solely with respect to Registrable Notes that are Private Exchange Notes,
Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes
held by Participating Broker-Dealers (as defined), and the Issuers shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to which Section
2(c)(iv) is applicable) pursuant to Section 3 hereof.
No securities other than the Exchange Notes (and the related Guarantees)
shall be included in the Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the Staff of the SEC or such positions or policies represent the
prevailing views of the Staff of the SEC. Such "Plan of Distribution" section
shall also expressly permit, to the extent permitted by applicable policies and
regulations of the SEC, the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including, to the extent
permitted by applicable policies and regulations of the SEC, all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes in compliance with
the Securities Act.
The Issuers shall use their reasonable best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as is necessary to comply with applicable
law in connection with any resale of the Exchange Notes covered thereby (the
"Applicable Period").
If, prior to consummation of the Exchange Offer, any Holder holds any
Securities acquired by it that have the status of an unsold allotment in an
initial distribution, or any Holder is not entitled to participate in the
Exchange Offer, the Company Issuers upon the request of any such Holder shall
simultaneously with the delivery of the Exchange Notes (and the related
Guarantees) in the Exchange Offer, issue and deliver to any such Holder, in
exchange (the "Private Exchange") for such Securities held by any such Holder, a
like principal amount of notes, (the "Private Exchange Notes") of the Company
Issuers, guaranteed by the Guarantor, that are identical in all material
respects to the Exchange Notes except for the placement of a restrictive legend
on such Private Exchange Notes. The Private Exchange Notes shall be issued
pursuant to the same indenture as the Exchange Notes and bear the same CUSIP
number as the applicable Exchange Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record 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) use their reasonable best efforts to keep the Exchange Offer open
for not less than 20 business days after the date that notice of the
Exchange Offer is mailed to Holders (or longer if required by applicable
law);
(3) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, the City of New York;
(4) permit Holders to withdraw tendered Securities 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
(5) 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 Securities validly tendered and not
validly withdrawn pursuant to the Exchange Offer and the Private Exchange,
if any;
(2) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Notes or Private Exchange Notes, as the case
may be (and, in each case, the related Guarantees), equal in principal
amount to the Securities of such Holder so accepted for exchange.
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 SEC, (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 Issuers
deem necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes (and the related Guarantees) and the Private Exchange
Notes (and the related Guarantees) shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture and which,
in either case, has been qualified under the TIA or is exempt from such
qualification and shall provide that the Exchange Notes shall not 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 Securities shall vote and consent together on all matters as one class and
that none of the Exchange Notes, the Private
Exchange Notes or the Securities will have the right to vote or consent as a
separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Issuers are not permitted to effect
the Exchange Offer, (ii) the Exchange Offer is not consummated on or prior to
the 290th day following the Issue Date, (iii) any holder of Private Exchange
Notes so requests in writing to the Issuers within 10 days after the
consummation of the Exchange Offer, or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such Holder as
an affiliate of any of the respective Issuers within the meaning of the
Securities Act), then in the case of each of clauses (i) to and including (iv)
of this sentence, the Company Issuers shall promptly deliver to the Holders
specified in clauses (iii) and (iv) above and the Trustee written notice thereof
(the "Shelf Notice") and shall file a Shelf Registration pursuant to Section 3
hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Issuers shall file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Securities not exchanged in the Exchange Offer, Private
Exchange Notes (and the related Guarantees) and Exchange Notes (and the related
Guarantees) as to which Section 2(c)(iv) is applicable (the "Initial Shelf
Registration"). The Issuers shall use their reasonable best efforts to file with
the SEC the Initial Shelf Registration on or before the Filing Date applicable
thereto. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them in accordance with the terms
of this Agreement (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 Initial Shelf Registration or any
Subsequent Shelf Registration (as defined below).
The Issuers shall use their reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on or prior
to the Effectiveness Date applicable thereto and to keep the Initial Shelf
Registration continuously effective under the Securities Act (except during a
Suspension Period) until the date which is two years after the Issue Date (the
"Effectiveness Period"), or such shorter period ending when (i) all Registrable
Notes covered by the Initial Shelf Registration have been sold in the manner set
forth and as contemplated in the Initial Shelf Registration or (ii) a Subsequent
Shelf Registration covering all of the Registrable Notes covered by and not sold
under the Initial Shelf Registration or an earlier Subsequent Shelf Registration
has been declared effective under the Securities Act; provided, however, that
the Effectiveness Period in respect of the Initial 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 shall be subject
to reduction to the extent that the applicable provisions of Rule 144(k) are
amended or revised to reduce the two year holding period set forth therein.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration ceases to be effective for any reason at any
time during the Effectiveness Period (other than because of a Suspension Period
or the sale of all of the securities registered thereunder), the Issuers shall
use their reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness use their reasonable best efforts to amend the
Initial Shelf Registration in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes covered by
and not sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration (each, a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Issuers shall use their reasonable best efforts to
cause the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
subsequent Shelf Registration continuously effective (except during any
Suspension Period) for the remainder of the Effectiveness Period. As used herein
the term "Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly supplement and
amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Shelf Registration or by any underwriter of such Registrable
Notes.
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 Company Issuers agree to pay, as
liquidated damages, additional interest on the Notes ("Additional Interest") if
(A) the Issuers have not exchanged Exchange Notes for all Securities validly
tendered in accordance with the terms of the Exchange Offer on or prior to the
290th day after the Issue Date or (B) if applicable, a Shelf Registration has
been declared effective and such Shelf Registration ceases to be effective at
any time during the Effectiveness Period (other than as the result of a
Suspension Period), then Additional Interest shall accrue on the principal
amount of all of the Registrable Notes in the case of clause (A) above, and on
the principal amount of those Registrable Notes to which the Shelf Registration
relates, in the case of clause (B) above, and in each case, at a rate of 0.25%
per annum for the first 90 days commencing on the (x) 291st day after such
effective date, in the case of (A) above, or (y) the 61st day after such Shelf
Registration ceases to be effective in the case of (B) above (or, in the event
of a Suspension Period, on the earlier of the last day of such Suspension Period
or the 60th day after notice of such Suspension Period), and such Additional
Interest rate shall increase by an additional 0.25% per annum after such 90-day
period; provided, however, that the Additional Interest rate on the Notes may
not exceed at any one time in the aggregate 0.50% per annum; provided, further,
however, that upon the exchange of the applicable Exchange Notes (and the
related
Guarantees) for all Securities tendered, or upon the effectiveness of the
applicable Shelf Registration Statement which had ceased to remain effective
(other than as a result of a Suspension Period), Additional Interest on the
Notes in respect of which such events relate as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to accrue.
(b) The Company Issuers shall notify the Trustee within three business days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to this Section 4 will be payable in cash
semiannually on each January 15 and July 15 (to the holders of record on the
January 1 and July 1 immediately preceding such dates), commencing with the
first such date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by the principal amount of the Registrable
Notes, multiplied 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.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Sections 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 each of the
Issuers shall:
(a) Prepare and file with the SEC on or prior to the applicable Filing
Date, a Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if such filing is pursuant to Section 3 hereof,
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 included in such Registration Statement, their counsel 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 days prior to such filing, or such later date as is reasonable
under the circumstances). The Issuers shall not file any Shelf Registration or
Prospectus related thereto or any amendments or supplements thereto if the
Holders of a majority in aggregate principal amount of the Registrable Notes
included in such Shelf Registration, their counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement 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)
promul-
gated under the Securities Act; and comply with the provisions of the Securities
Act and the Exchange Act applicable to each of them 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. The Issuers shall be deemed not to have used
their reasonable best efforts to keep a Registration Statement effective during
the Effectiveness Period or the Applicable Period, as the case may be, relating
thereto if any Issuer voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable Notes or
such Exchange Notes, as the case may be, during that period unless (i) such
action is required by applicable law or permitted by this Agreement, or (ii)
such action is taken for valid business reasons (not including avoidance of the
Issuers' obligations hereunder), including the acquisition or divestiture of any
business or assets.
(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 Issuers have
received written notice that it will be a Participating Broker-Dealer in the
Exchange Offer, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any (in the case of clause (1) above), promptly (but in any
event within two business days), and confirm such notice in writing, (i) (in the
case of clause (1) above) 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 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 SEC 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) (in the case of clause (1) above) 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(l) hereof cease to be true and correct in all material respects,
(iv) of the receipt by any Issuer 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 to
be sold by any Participating Broker-Dealer 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 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 light of
the circumstances under which they were made, not misleading, and (vi) of the
Issuers' determination that a post-effective amendment to a Registration
Statement would be appropriate.
(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 its 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 to be sold by any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest possible
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if requested
by the managing underwriter or underwriters (if any) or the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering (i) as promptly as practicable
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any) or such Holders
or counsel for any of them reasonably request to be included therein, (ii) make
all required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after an Issuer has received notification of
the matters to be incorporated in such prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to such Registration
Statement.
(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 and
to each such Participating Broker-Dealer who so requests and to their respective
counsel, if any, and each managing underwriter, if any, 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 any, and the underwriters, if any, 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 reference 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 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 its 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, if any, in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes 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 in writing; provided, however, that where Exchange Notes held
by Participating Broker-Dealers or Registrable Notes are offered other than
through an underwritten offering, the Issuers agree to cause their 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 the Exchange Notes held by Participating Broker-Dealers or
the 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 global certificates representing Registrable Notes to be sold, which
global 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 Holders may request.
(j) 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
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorpo-
rated 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 light of the circumstances under
which they were made, not misleading. Notwithstanding the foregoing, the Issuers
shall not be required to amend or supplement a Registration Statement, any
related Prospectus or any document incorporated therein by reference, in the
event that, and for a period not to exceed an aggregate of 60 days in any
calendar year (a "Suspension Period") if, (i) an event occurs and is continuing
as a result of which the Shelf Registration would, in the Company Issuers' good
faith judgment, contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and (ii) (a)
the Company Issuers determine in their good faith judgment that the disclosure
of such event at such time would have a material adverse effect on the business,
operations or prospects of the Company Issuers or (b) the disclosure otherwise
relates to a pending material business transaction that has not yet been
publicly disclosed.
(k) 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.
(l) 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
Registrable Notes in form and substance reasonably satisfactory to the Issuers
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, in such connection, (i) make
such representations and warranties to, and covenants with, the underwriters
with respect to the business of the Issuers and the subsidiaries of the Issuers
(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 Securities, and confirm the same in writing if and when requested in form
and substance reasonably satisfactory to the Issuers; (ii) 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 covering the matters customarily
covered in opinions reasonably requested in underwritten offerings and such
other matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) use its 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 public
accountants of the Issuers (and, if necessary, any other independent public
accountants of the Issuers, any subsidiary of the Issuers or of any business
acquired by the Issuers 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, such letters to be in
customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings of debt securities similar to the Registrable Notes and such other
matters as reasonably requested by the managing underwriter or underwriters as
permitted by the Statement on Auditing Standards No. 72; provided that the
representations, warranties, covenants, legal opinions and comfort letters
described in clauses (i), (ii) and (iii) above shall be substantially similar to
those set forth or described in the Purchase Agreement, with such differences as
shall be agreed upon by the Issuers and the managing underwriter; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the sellers and underwriters, if
any, 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, if any). The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
(m) If a Shelf Registration is filed pursuant to Section 3 hereof, make
available for inspection by any selling Holder of such Registrable Notes being
sold, 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 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 Issuers
and subsidiaries of the Company Issuers (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
Issuers and any of their respective subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Each Inspector shall agree in writing that it will keep the Records
confidential and that it will not disclose any of the Records that any of the
respective Issuers determines, in good faith, to be confidential and notifies
the Inspectors in writing are confidential unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or material
omission in such Registration Statement, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (iii) the information in such Records has been made generally
available to the public; provided, however, that prior notice shall be provided
as soon as practicable to the Issuers of the potential disclosure of any
information by such Inspector pursuant to clauses (i) or (ii) of this sentence
to permit the Company Issuers to obtain a protective order (or waive the
provisions of this paragraph (m)) and that 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. Each selling Holder of such Registrable Notes
will be required to agree that information obtained by it as a result of such
inspections shall be deemed confidential, shall be used only for due diligence
purposes pursuant to this Section 5(m) and shall not be used by it as the basis
for any market transactions in those securities of the Issuers unless and until
such information is generally available to the public. Each selling Holder of
such Registrable Notes will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Issuers and allow the Issuers to undertake
appropriate action to prevent disclosure of the Records deemed confidential at
the Issuers' sole expense; provided that
any such expenses shall be subject to the direct payment, advancement or
reimbursement provisions of Section 6 hereof.
(n) 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, as the case may be, to be qualified under
the TIA not later than the effective date of 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,
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
its 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 SEC to enable such indenture to be so qualified in
a timely manner.
(o) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders with regard to any applicable
Registration Statement, a consolidated earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 60 days
after the end of any fiscal quarter (or 120 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable 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
respective Company Issuers after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
(p) Upon consummation of the Exchange Offer or a Private Exchange, obtain
an opinion of counsel to the respective Company 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, the related Guarantees and the related indenture constitute
legal, valid and binding obligations of the Issuers, enforceable against them in
accordance with their respective terms, subject to customary exceptions and
qualifications.
(q) If the Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Notes by Holders to the Company Issuers (or to such
other Person as directed by the Company Issuers) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Company Issuers
shall mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being canceled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
(r) 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 National Association of Securities
Dealers, Inc. (the "NASD").
(s) Use its reasonable best efforts to take all other steps reasonably
necessary to effect the registration of the Exchange Notes and/or Registrable
Notes covered by a Registration Statement contemplated hereby.
The Company Issuers may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Company Issuers may, from time to time, reasonably request. The Company
Issuers 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. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company Issuers
all information required to be disclosed in order to make the information
previously furnished to the Company Issuers by such seller not materially
misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by its acquisition of such Registrable Notes or Exchange Notes to be sold
by such Participating Broker-Dealer, as the case may be, that, upon actual
receipt of any notice from the Company Issuers of the happening of any event of
the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof or
upon receipt of notice of a Suspension Period, such Holder will forthwith
discontinue disposition of such Registrable 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, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing (the "Advice") by the Company Issuers that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Company Issuers shall give any such
notice, the Applicable Period shall be extended by the number of days during
such periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(j) hereof or (y)
the Advice.
6. Registration Expenses
Pursuant to the terms of the Purchase Agreement, the Selling Noteholders
agree to pay all fees and expenses incident to the performance of or compliance
with this Agreement.
7. Indemnification
(a) Each of the Issuers, jointly and severally, agrees to indemnify and
hold harmless each Holder of Registrable Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the
affiliates, officers, directors, representatives, employees and agents of each
such Person, and each Person, if any, who controls any such Person within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a "Participant"), from and against any and all losses, claims,
damages, judgments, liabilities and expenses (including, without limitation, the
reasonable legal fees and other expenses ac-
tually incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or 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 Issuers 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 light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities 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
any Participant furnished to the Company Issuers in writing by such Participant
expressly for use therein; provided, that as to any preliminary Prospectus, this
indemnity agreement shall not inure to the benefit of any Participant or any
person controlling any Participant on account of any loss, claim, damage,
liability or action arising from any sale of Registrable Notes to any person by
the Participant if that Participant failed to send or give a copy of the
Prospectus (or the Prospectus as amended or supplemented) to such person at or
prior to the written confirmation of sale to such person and if the untrue
statement or omission giving rise to such loss, claim, damage, liability or
action was corrected in the Prospectus (as amended or supplemented), unless such
failure resulted from non-compliance by the Issuers with Section 5(g) of this
Agreement; and provided further, that no partner of Holdings in such partner's
capacity as such shall be liable for indemnification or contribution pursuant to
this Section 7 on account of any loss, claim, damage, judgment, liability or
expense (including, without limitation, any legal fees or other fee or expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or 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),
and by purchasing the Notes, each holder of Notes waives any such liability of
any partner of Holdings.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, their respective affiliates, officers, partners,
directors (or equivalent), representatives, employees and agents of each Issuer
and each Person who controls each Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent (but on a
several, and not joint, basis) as the foregoing indemnity from the Issuers to
each Participant, but only with reference to information relating to such
Participant furnished to the Company Issuers in writing by such Participant
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary prospectus. The liability of any
Participant under this paragraph shall in no event exceed the proceeds received
by such Participant from sales of Registrable Notes or Exchange Notes giving
rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Persons against whom such indemnity may be sought (the "Indemnifying
Persons") in writing, and the Indemnifying Persons, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may reasonably
designate in such proceeding and shall pay the fees and expenses actually
incurred by such counsel related to such proceeding; provided, however, that the
failure to so notify the Indemnifying Persons (i) will not relieve it from any
liability under paragraph (a) or (b) above unless and to the extent that the
Indemnifying Person is materially prejudiced by such failure to notify and (ii)
will not, in any event, relieve the Indemnifying Person from any obligations to
any Indemnified Person otherwise than under this Section 7. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Persons and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Persons
shall have failed within a reasonable period of time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both any
Indemnifying Person and the Indemnified Person or any affiliate thereof and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
Indemnifying Persons shall not, in connection with such proceeding or separate
but substantially similar related proceeding in the same jurisdiction arising
out of the same general allegations, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed promptly as
they are incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who sold
a majority in interest of Registrable Notes and Exchange Notes sold by all such
Participants and shall be reasonably acceptable to the Company Issuers, and any
such separate firm for the Issuers, their affiliates, officers, directors,
representatives, employees and agents and such control Persons of such Issuer
shall be designated in writing by such Issuer and shall be reasonably acceptable
to the Holders.
The Indemnifying Persons shall not be liable for any settlement of any
proceeding effected without its prior written consent (which consent shall not
be unreasonably withheld or delayed), but if settled with such consent or if
there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
each of the Indemnifying Persons agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Persons (which consent shall not be unreasonably
withheld or delayed), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of such
Indemnified Person.
(d) If the indemnification provided for in the first and second paragraphs
of this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Notes or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuers on the one hand or
such Participant or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(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
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages, judgments, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the Indemnifying Person to the Indemnified Person as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Issuers set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Holder or any person who controls a
Holder, the Issuer, its directors, officers, employees or agents or any person
controlling an Issuer, and (ii) any termination of this Agreement.
(g) The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Issuers covenant and agree that the Guarantor or the Operating Company
will file the reports required to be filed by the Issuers under the Securities
Act and the Exchange Act and the rules and regulations adopted by the SEC
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, the Guarantor or the Operating Company 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. Each of the Issuers further covenants and agrees, for so
long as any Registrable Notes remain outstanding that it will take such further
action as any Holder of Registrable Notes may reasonably request, all to the
extent required from time to time to make available to any Holder or beneficial
owner of Registrable Notes in connection with any sale thereof and any
prospective purchaser or such beneficial owner the information required in order
to permit resales of such Registrable Notes pursuant to Rule 144A under the
Securities Act, unless the Issuers are then subject to Section 13 or 15(d) of
the Exchange Act and reports filed thereunder satisfy the information
requirements of Rule 144A(d)(4) then in effect.
9. Underwritten Registrations
The Issuers shall not be required to assist in an underwritten offering
unless requested by the Holders of a majority in aggregate principal amount of
the then outstanding Registrable Notes.
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 Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees 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)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities 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 in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers 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, unless by the terms of such piggy-back registration
rights, the registration of securities of such Person pursuant to such
Registration Statement will not result in any reduction in the amount of any
Registrable Notes that may be registered pursuant to such 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, otherwise than with the prior written
consent of (I) the Company 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 without the prior written
consent of 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 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, including courier
service, or facsimile:
(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.
(ii) if to the Issuers, at the address as follows:
c/o Graham Packaging Company, L.P.
2401 Pleasant Valley Road
York, Pennsylvania 17402
Attention: John E. Hamilton, Chief Financial Officer
Telephone No.: (717) 849-8521
Facsimile No.: (717) 849-8541
with copies to:
The Blackstone Group
345 Park Avenue
New York, New York 10154
Attention: Howard A. Lipson, Senior Managing Director
Telephone No.: (212) 583-5844
Facsimile No.: (212) 583-5703
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
Attention: Edward P. Tolley III, Esq.
Telephone No.: (212) 455-3189
Facsimile No.: (212) 455-2502
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, including delivery by courier service; and when
receipt is acknowledged by the addressee, if sent by facsimile.
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 the Indenture.
(e) 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.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(i) 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 unenforce-
able, 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
reasonable 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.
(j) 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 Company Issuers or 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.
(k) Third-Party Beneficiaries. Holders of Registrable Notes and
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) 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.
(m) Non-Recourse Obligations. The obligations under this Agreement, the
Notes, the Registration Statement, the Exchange Offer, the Exchange Notes, the
Private Exchange Notes, any Guarantee, any Initial Shelf Registration,
Subsequent Shelf Registration, the Purchase Agreement or the transactions
contemplated hereby and thereby shall be expressly non-recourse to the partners
of Holdings in their capacities as such, and the partners of Holdings shall not
incur any liabilities or bear any costs or expenses in connection with this
Agreement or the issuance and sale of the Notes, including but not limited to
any such costs and expenses as provided in Section 6 hereof or any liabilities
for indemnification or contribution as provided in Section 7 hereof, and by
purchasing the Notes, each holder of Notes waives any such obligation or
liability of any partner of Holdings and waives any requirement that any such
partner bear any such costs or expenses.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
The Company Issuers:
-------------------
GRAHAM PACKAGING COMPANY, L.P.
By: GPC Opco GP LLC,
its general partner
By: /s/ John Hamilton
------------------------------
Name: John Hamilton
Title: Chief Financial Officer
GPC CAPITAL CORP. I
By: /s/ John Hamilton
------------------------------
Name: John Hamilton
Title: Vice President
The Guarantor:
-------------
GRAHAM PACKAGING HOLDINGS
COMPANY
By: BCP/Graham Holdings L.L.C.,
its general partner
By: /s/ John Hamilton
------------------------------
Name: John Hamilton
Title: Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
DEUTSCHE BANK SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
as Initial Purchasers
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ Mark Epley
-------------------------------
Name: Mark Epley
Title: Managing Director
By: /s/ Steven Winograd
-------------------------------
Name: Steven Winograd
Title: Managing Director
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Svetoslav Nikov
-------------------------------
Name: Svetoslav Nikov
Title: Vice President