Execution Version 4.01
SERIES A AND SERIES B
$50,000,000
8 5/8% SENIOR NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 4, 2003
BY AND AMONG
DURA OPERATING CORP.
DURA AUTOMOTIVE SYSTEMS, INC.
DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS, INC.
UNIVERSAL TOOL & STAMPING COMPANY INC.
ADWEST ELECTRONICS, INC.
DURA AUTOMOTIVE SYSTEMS OF INDIANA, INC.
ATWOOD AUTOMOTIVE INC.
MARK I MOLDED PLASTICS OF TENNESSEE, INC.
ATWOOD MOBILE PRODUCTS, INC.
DURA G.P.
CREATION GROUP HOLDINGS, INC.
CREATION GROUP, INC.
AND
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
COMERICA SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
WACHOVIA CAPITAL MARKETS, LLC
BARCLAYS CAPITAL INC.
ABN AMRO INCORPORATED
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of November 4, 2003, by and among Dura Operating Corp., a
Delaware corporation (the "Company"), Dura Automotive Systems, Inc., Dura
Automotive Systems Cable Operations, Inc., Universal Tool & Stamping Company
Inc., Adwest Electronics, Inc., Dura Automotive Systems of Indiana, Inc., Atwood
Automotive Inc., Mark I Molded Plastics of Tennessee, Inc., Atwood Mobile
Products, Inc., Dura G.P., Creation Group Holdings, Inc. and Creation Group,
Inc. (each a "Guarantor" and, collectively, the "Guarantors"), J.P. Morgan
Securities Inc., Banc of America Securities LLC, Comerica Securities, Inc.,
Scotia Capital (USA) Inc., Wachovia Capital Markets, LLC, Barclays Capital Inc.
and ABN AMRO Incorporated and (each an "Initial Purchaser" and, collectively,
the "Initial Purchasers"), each of whom has agreed to purchase $50,000,000
aggregate principal amount of the Company's Series A 8 5/8% Senior Notes due
2012 (the "Series A Notes") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement,
dated October 29, 2003 (the "Purchase Agreement"), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers
to purchase the Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 5 of the Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned to them in the Indenture,
dated April 18, 2002, between the Company and BNY Midwest Trust Company, as
Trustee, as supplemented by a Supplemental Indenture dated as of November 4,
2003 (the "Indenture"), relating to the Series A Notes and the Series B Notes
(as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Applicable Period: As defined in Section 3(c) hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act (as defined below).
Business Day: Any day except a Saturday, Sunday or other day
in The City of New York on which banks are authorized or ordered to close.
Certificated Securities: Definitive Notes, as defined in the
Indenture.
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a)
hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Company of a
principal amount of Series B Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Series A Notes that are tendered by such Holders in connection with such
exchange and issuance.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series A Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the Act, and
pursuant to Regulation S under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Indemnified party: As defined in Section 8(c) hereof.
Indemnifying party: As defined in Section 8(c) hereof.
Notes: The Series A and Series B Notes.
Participant: As defined in Section 8(a) hereof.
Participating Broker Dealers: As defined in Section 3(a)
hereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
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Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company and the Guarantors relating to (a) an offering of Series B Notes
pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, in each case
(i) that is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Regulation S: Regulation S promulgated under the Act.
Requesting Holders: As defined in Section 6(c)(xi) hereof.
Rule 144: Rule 144 promulgated under the Act.
Series B Notes: The Company's Series B 8 5/8% Senior Notes due
2012 to be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii)
as contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series A Note, until the
earliest to occur of (i) the date on which such Series A Note is exchanged in
the Exchange Offer for a Series B Note which is entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (ii) the date on which such Series A Note has been
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued without restriction Series B Notes), or
(iii) the date on which such Series A Note is eligible for distribution without
restriction to the public pursuant to Rule 144 under the Act.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after compliance with the procedures set forth in
Section 6(a)(i) below), the Company and the Guarantors shall (i) cause the
Exchange Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90 days after
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the Closing Date (such 90th day being the "Filing Deadline"), (ii) use their
respective reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date (such 180th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Series B Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Series B Notes to be offered in exchange for the Transfer
Restricted Securities and (ii) resales of Series B Notes by Broker-Dealers that
tendered into the Exchange Offer Series A Notes that such Broker-Dealer acquired
for its own account as a result of market making activities or other trading
activities (other than Series A Notes acquired directly from the Company or any
of its Affiliates) ("Participating Broker-Dealers") as contemplated by Section
3(c) below.
(b) The Company and the Guarantors shall use their respective
reasonable best efforts to cause the Exchange Offer Registration Statement to be
effective continuously, and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company and the
Guarantors shall cause the Exchange Offer to comply with all applicable federal
and state securities laws. No securities other than the Transfer Restricted
Securities shall be included in the Exchange Offer Registration Statement. The
Company and the Guarantors shall use their respective reasonable best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter (such 30th day being the
"Consummation Deadline").
(c) The Company shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Participating Broker-Dealer may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Participating Broker-Dealers that the Commission may require
in order to permit such sales pursuant thereto, but such "Plan of Distribution"
shall not name any such Participating Broker-Dealer or disclose the amount of
Notes held by any such Participating Broker-Dealer, except to the extent
required by the Commission as a result of a change in policy, rules or
regulations after the date of this Agreement. See the Shearman & Sterling
no-action letter (available July 2, 1993).
Because such Participating Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Series B Notes received by such Participating Broker-Dealer in the
Exchange Offer, the Company and the Guarantors shall permit the use of the
Prospectus contained in the Exchange Offer Registration Statement by such
Participating
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Broker-Dealer to satisfy such prospectus delivery requirement. To the extent
necessary to ensure that the prospectus contained in the Exchange Offer
Registration Statement is available for sales of Series B Notes by Participating
Broker-Dealers, the Company and the Guarantors agree to use their respective
reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Section 6(a) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
180 days from the Consummation Deadline or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold pursuant thereto (the "Applicable Period"). The Company and the
Guarantors shall provide sufficient copies of the latest version of such
Prospectus to such Participating Broker-Dealers, promptly upon request, and in
no event later than one Business Day after such request, at any time during such
period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law (after the Company and the Guarantors have complied
with the procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of
Transfer Restricted Securities shall notify the Company in writing within 20
Business Days following the Consummation Deadline that (A) such Holder was
prohibited by law or Commission policy from participating in the Exchange Offer
or (B) such Holder may not resell the Series B 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 by such Holder or (C) such Holder is a Broker-Dealer
and holds Series A Notes acquired directly from the Company or any of its
Affiliates, then the Company and the Guarantors shall:
(x) use their respective reasonable best efforts
to cause to be filed, on or prior to 30 days after the earlier of (i)
the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i)
above and (ii) the date on which the Company receives the notice
specified in clause (a)(ii) above (such earlier date, the "Filing
Deadline"), a shelf registration statement pursuant to Rule 415 under
the Act (which may be an amendment to the Exchange Offer Registration
Statement (the "Shelf Registration Statement")), relating to all
Transfer Restricted Securities (provided, however, nothing in this
Section 4(a)(x) shall require the filing of the Shelf Registration
Statement prior to the Filing Deadline for the Exchange Offer
Registration Statement), and
(y) shall use their respective reasonable best
efforts to cause such Shelf Registration Statement to become effective
on or prior to 90 days after the Filing Deadline for the Shelf
Registration Statement (such 90th day the "Effectiveness Deadline").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) above), then the filing of the Exchange Offer
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Registration Statement shall be deemed to satisfy the requirements of clause (x)
above; provided that, in such event, the Company shall remain obligated to meet
the Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their respective reasonable
best efforts to keep any Shelf Registration Statement required by this Section
4(a) continuously effective, supplemented, amended and current as required by
and subject to the provisions of Sections 6(b) and (c) hereof and in conformity
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of at
least two years (as extended pursuant to Section 6(c)(i)) following the Closing
Date), or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 10 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to liquidated damages pursuant
to Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading. The Company
shall not be obligated to supplement such Shelf Registration Statement after it
has been declared effective by the Commission more than one time per quarterly
period to reflect additional Holders.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the applicable Filing Deadline,
(ii) any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within 5 Business Days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective immediately (each such event
referred to in clauses (i) through (iv), a "Registration Default"), then the
Company and the Guarantors hereby jointly and severally agree to pay to each
Holder of Transfer Restricted Securities affected thereby (subject to Section
4(b)) liquidated damages in an amount equal to .50% per annum over the stated
interest rate for the Transfer Restricted Securities held by such Holder for
each week or portion thereof that the Registration Default continues for the
first 90-day period immediately following the occurrence of such Registration
Default; provided that if Securities Act Rule 437a or a substantially similar
rule is not then
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available, and, despite all reasonable efforts on the part of the Company and
the Guarantors, (A) the Company and the Guarantors' failure to file any such
registration statements on or before the Filing Deadline has resulted solely
from, or (B) any such registration statements has not been declared effective on
or prior to the Effectiveness Deadline solely because of, in each case, the
inability or refusal of their auditor to issue a consent to the use of its audit
report relating to the consolidated financial statements required in connection
with any such registration statements, then the occurrence of a Registration
Default shall be determined as set forth in the next succeeding paragraph, but
shall only be determined with respect to either clause (A) or clause (B) but not
both.
For purposes of determining the occurrence of a Registration
Default under the proviso in the immediately preceding paragraph: (1) with
respect to clause (A) immediately above, if, prior to the earlier of the filing
of any such registration statements and the otherwise applicable Filing
Deadline, the Company receives notice or has reasonable grounds to conclude and
in good faith concludes that its auditor is unable or unwilling to issue such
consent, then the Filing Deadline would be 90 days, and the Effectiveness
Deadline would be 180 days, in each case, from the date on which the Company
first receives such notice or reaches such conclusion; and (2) with respect to
clause (B) immediately above, if, subsequent to the filing of any such
registration statements but prior to the otherwise applicable Effectiveness
Deadline, the Company first receives notice or has reasonable grounds to
conclude and in good faith concludes that its auditor is unable or unwilling to
issue such consent, then the Effectiveness Deadline would be 90 days from the
date on which the Company first receives such notice or reaches such conclusion,
unless the otherwise applicable Effectiveness Deadline would have been more than
90 days from the date of such notice or such conclusion. Promptly upon receiving
such notice or reaching such conclusion, the Company shall deliver an officers'
certificate to the trustee certifying as to the date of the receipt of such
notice or the date of the reaching of such conclusion, in which case the
officer's certificate shall also set forth in reasonable detail the basis of
such conclusion, and setting forth the resultant Filing Deadline and/or
Effectiveness Deadline, as the case may be, and the trustee shall notify the
Holders of such resultant date or dates.
The amount of the liquidated damages shall increase by an
additional .50% per annum over the stated interest rate for the Transfer
Restricted Securities at the beginning of each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum amount of liquidated
damages of 1.0% per annum over the stated interest rate for the Transfer
Restricted Securities; provided that the Company and the Guarantors shall in no
event be required to pay liquidated damages for more than one Registration
Default at any given time. Notwithstanding anything to the contrary set forth
herein, (1) upon filing of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (i) above, (2)
upon the effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the liquidated
damages payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
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All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Series A Notes. Notwithstanding the fact that any securities
for which liquidated damages are due cease to be Transfer Restricted Securities,
all obligations of the Company and the Guarantors to pay liquidated damages with
respect to securities shall survive until such time as such obligations with
respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company and the Guarantors shall (x) comply with all
applicable provisions of Section 6(c) below, (y) use their respective reasonable
best efforts to effect such exchange and to permit the resale of Series B Notes
by Broker-Dealers that tendered in the Exchange Offer, Notes that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Notes acquired directly from
the Company or any of its Affiliates) being sold in accordance with the intended
method or methods of distribution thereof, and (z) comply with all of the
following provisions:
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to
exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Company and the
Guarantors hereby agree to use their respective reasonable
best efforts to seek a no-action letter or other favorable
decision from the Commission allowing the Company and the
Guarantors to Consummate an Exchange Offer for such Transfer
Restricted Securities. The Company and the Guarantors hereby
agree to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the
Company and the Guarantors hereby agree to take all such other
reasonable actions as may be requested by the Commission or
otherwise required in connection with the issuance of such
decision, including without limitation (A) participating in
telephonic conferences with the Commission, (B) delivering to
the Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need
not be favorable) by the Commission staff.
(ii) As a condition to its participation in the
Exchange Offer, each Holder of Transfer Restricted Securities
(including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (which may be
contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A)
it is not an Affiliate of the Company, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement
or understanding with any person to participate in, a
distribution of the Series B Notes to be issued in the
Exchange
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Offer and (C) it is acquiring the Series B Notes in its
ordinary course of business. As a condition to its
participation in the Exchange Offer, each Holder using the
Exchange Offer to participate in a distribution of the Series
B Notes shall acknowledge and agree that, if the resales are
of Series B Notes obtained by such Holder in exchange for
Notes acquired directly from the Company or an Affiliate
thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of
the Commission enunciated in Morgan Stanley and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (i) above), and
(2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale
transaction and that such a secondary resale transaction must
be covered by an effective registration statement containing
the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall
provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Morgan Stanley and Co., Inc. (available June 5,
1991) as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and, if applicable, any no-action
letter obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person
to distribute the Series B Notes to be received in the
Exchange Offer and that, to the Company's and each Guarantor's
information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding
with any Person to participate in the distribution of the
Series B Notes received in the Exchange Offer and (C) any
other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to
clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall (i) comply with all
the provisions of Section 6(c) below and use their respective reasonable best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
and the Guarantors will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof, and
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(ii) issue, upon the request of any Holder
providing satisfactory evidence to the Company of its sale of Series A Notes or
purchase of Series A Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Series B Notes having an aggregate principal
amount equal to the aggregate principal amount of Series A Notes sold pursuant
to the Shelf Registration Statement and surrendered to the Company for
cancellation; the Company shall register Series B Notes on the Shelf
Registration Statement for this purpose and issue the Series B Notes to the
purchaser(s) of securities subject to the Shelf Registration Statement in the
names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company and
the Guarantors shall:
(i) use their respective reasonable best efforts
to keep such Registration Statement continuously effective and
provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable.
Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A)
to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements
therein not misleading or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company and the Guarantors
shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission
review is required, use their respective reasonable best
efforts to cause such amendment to be declared effective as
soon as practicable;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the applicable
Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424,
430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) with respect to a Shelf Registration
Statement, advise the selling Holders promptly and, if
requested by such Persons, confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of
any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement under the Act
or of the suspension by any state securities commission of the
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qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto
or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions
to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company and the
Guarantors shall use their respective reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) subject to Section 6(c)(i), if any fact or
event contemplated by Section 6(c)(iii)(D) above shall exist
or have occurred, use reasonable best efforts to prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(v) furnish to the Initial Purchasers and with
respect to a Shelf Registration Statement, each selling Holder
named in any Registration Statement or Prospectus in
connection with such sale, if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial
filing of such Registration Statement), which documents will
be subject to the review and comment of such Holders in
connection with such sale, if any, for a period of at least
five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to
which the selling Holders of the Transfer Restricted
Securities covered by such Registration Statement in
connection with such sale, if any, shall reasonably object
within five Business Days after the receipt thereof. A selling
Holder shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus
or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission or fails to
comply with the applicable requirements of the Act;
11
(vi) with respect to a Shelf Registration
Statement, provide copies, upon written request therefor, of
any document that is incorporated by reference into a
Registration Statement or Prospectus to the selling Holders in
connection with such sale, if any;
(vii) with respect to a Shelf Registration
Statement, make available at reasonable times for inspection
by the selling Holders participating in any disposition
pursuant to such Registration Statement and any attorney or
accountant retained by such selling Holders, all financial and
other records, pertinent corporate documents of the Company
and cause the Company's officers, directors and employees to
supply all information reasonably requested under the
circumstances by any such selling Holder, attorney or
accountant in connection with such Registration Statement or
any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness;
(viii) with respect to a Shelf Registration
Statement, if requested by any selling Holders in connection
with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as
such selling Holders may reasonably request to have included
therein, including, without limitation, information relating
to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Company is notified of the matters to be included in
such Prospectus supplement or post-effective amendment;
(ix) with respect to a Shelf Registration
Statement, furnish to each selling Holder, upon request, in
connection with such sale, if any, without charge, at least
one copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) with respect to a Shelf Registration
Statement, deliver to each selling Holder without charge, as
many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company and the Guarantors
hereby consent to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each
selling Holder in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus
or any amendment or supplement thereto;
(xi) upon the written request of any Holders who
collectively hold an aggregate principal amount of Transfer
Restricted Securities in excess of 10% of the aggregate
principal amount of the outstanding Transfer Restricted
Securities (the "Requesting Holders"), enter into an
underwriting agreement on one occasion and make such
representations and warranties and take all such other actions
as
12
are reasonably customary in underwritten offerings in order to
expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably
requested by the Requesting Holders in connection with any
sale or resale pursuant to any applicable Registration
Statement. In such connection, the Company and the Guarantors
shall:
(A) upon request of the Requesting
Holders, furnish (or in the case of paragraphs (2)
and (3), use their reasonable best efforts to cause
to be furnished) to each Requesting Holder, upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such
date, signed on behalf of the Company and
each Guarantor by (x) the President or any
Vice President and (y) a principal financial
or accounting officer of the Company and
such Guarantor, confirming, as of the date
thereof, the matters set forth in Sections
3(k), 5(b), 5(c) and 5(d) of the Purchase
Agreement and such other similar matters as
such Holders may reasonably request;
(2) an opinion, dated the
date of Consummation of the Exchange Offer
or the date of effectiveness of the Shelf
Registration Statement, as the case may be,
of counsel for the Company and the
Guarantors covering matters similar to those
covered by the opinion delivered pursuant
Section 5(g) of the Purchase Agreement and
such other matters as such Holder may
reasonably request, and in any event
including a statement to the effect that
such counsel has participated in conferences
with officers and other representatives of
the Company and the Guarantors,
representatives of the independent public
accountants for the Company and the
Guarantors and have considered the matters
required to be stated therein and the
statements contained therein, although such
counsel has not independently verified the
accuracy, completeness or fairness of such
statements; and that such counsel advises
that, on the basis of the foregoing (relying
as to materiality to the extent such counsel
deems appropriate upon the statements of
officers and other representatives of the
Company and the Guarantors and without
independent check or verification), no facts
came to such counsel's attention that caused
such counsel to believe that the applicable
Registration Statement, at the time such
Registration Statement or any post-effective
amendment thereto became effective and, in
the case of the Exchange Offer Registration
Statement, as of the date of Consummation of
the Exchange Offer, contained an untrue
statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading, or that the
Prospectus contained in such
13
Registration Statement as of its date and,
in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of
the date of Consummation, contained an
untrue statement of a material fact or
omitted to state a material fact necessary
in order to make the statements therein, in
the light of the circumstances under which
they were made, not misleading. Without
limiting the foregoing, such counsel may
state further that such counsel assumes no
responsibility for, and has not
independently verified, the accuracy,
completeness or fairness of the financial
statements, notes and schedules and other
financial data included in any Registration
Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort
letter, dated the date of Consummation of
the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration
Statement, as the case may be, from the
Company's independent accountants, in the
customary form and covering matters of the
type customarily covered in comfort letters
to underwriters in connection with
underwritten offerings, and affirming the
matters set forth in the comfort letters
delivered pursuant to Section 5(f) of the
Purchase Agreement; and
(B) deliver such other documents and
certificates as may be reasonably requested by the
selling Holders to evidence compliance with the
matters covered in clause (A) above and with any
customary conditions contained in any agreement
entered into by the Company and the Guarantors
pursuant to this clause (xi);
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders and
their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the
selling Holders may request and do any and all other acts or
things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided,
however, that neither the Company nor any Guarantor shall be
required to register or qualify as a foreign corporation where
it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not
now so subject;
(xiii) in connection with any sale of Transfer
Restricted Securities that will result in such securities no
longer being Transfer Restricted Securities, cooperate with
the Holders to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such
14
denominations and such names as the selling Holders may
request at least two Business Days prior to such sale of
Transfer Restricted Securities;
(xiv) use their respective reasonable best efforts
to cause the disposition of the Transfer Restricted Securities
covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as
may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (v)
above;
(xv) provide, as applicable, CUSIP numbers,
identical in all respects with the CUSIP numbers relating to
the Company's Exchange Notes (as defined in the Indenture),
for all Transfer Restricted Securities not later than the
effective date of a Registration Statement covering such
Transferred Restricted Securities; and provide the Trustee
under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit
with The Depository Trust Company;
(xvi) otherwise use their respective reasonable
best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to
its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which
need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as
such term is defined in paragraph (c) of Rule 158 under the
Act); and
(xvii) provide promptly to each Holder, upon
request, each document filed with the Commission pursuant to
the requirements of Section 13 or Section 15(d) of the
Exchange Act.
(d) Restrictions on Holders. Each Holder of Transfer
Restricted Securities and Participating Broker-Dealer agrees by acquisition of a
Transfer Restricted Security or Series B Note, as the case may be, that, upon
receipt of the notice referred to in Section 6(c)(iii)(C) or any notice from the
Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such Holder of
Transfer Restricted Securities or Participating Broker-Dealers will forthwith
discontinue disposition of Transfer Restricted Securities or Series B Notes, as
the case may be, pursuant to the applicable Registration
15
Statement until (i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder
of Transfer Restricted Securities or Participating Broker-Dealer is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "Recommencement Date"). Each
Holder of Transfer Restricted Securities or Participating Broker-Dealer
receiving a Suspension Notice hereby agrees that it will either (i) destroy any
Prospectuses, other than permanent file copies, then in such Holder's or
Participating Broker-Dealer's possession which have been replaced by the Company
with more recently dated Prospectuses or (ii) deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's or Participating Broker-Dealer's possession of the Prospectus covering
such Transfer Restricted Securities or Series B Notes that was current at the
time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by a number of days equal to the number of days
in the period from and including the date of delivery of the Suspension Notice
to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Series B Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) (A) all fees
and disbursements of counsel for the Company and the Guarantors and (B) one
counsel for the Holders of Transfer Restricted Securities in connection with an
underwritten offering; (v) all application and filing fees in connection with
listing the Series B Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company and the
Guarantors (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with any Shelf Registration Statement
required by this Agreement, the Company and the Guarantors will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be chosen by the Initial
Purchasers or, if the Initial Purchasers are not Holders of Transfer Restricted
Securities such other firm as shall be chosen by the Requesting Holders for
whose benefit such Shelf Registration Statement is being prepared.
16
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Holder of Transfer Restricted
Securities and each Participating Broker-Dealer selling Series B Notes during
the Applicable Period, its directors, officers and each Person, if any, who
controls such Holder or Participating Broker-Dealer (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) (each a "Participant"),
from and against any and all losses, claims, damages, liabilities, judgments
(including without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus
(or any amendment or supplement thereto) provided by the Company to any
Participant for use in connection with the resale of Series B Notes, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is based upon information relating to any of the Participants
furnished in writing to the Company by any of the Participants.
(b) Each Participant will be required to agree, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantors, and
their respective directors and officers, and each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act)
the Company, or the Guarantors to the same extent as the foregoing indemnity
from the Company and the Guarantors set forth in Section (a) above, but only
with reference to information relating to such Participant furnished in writing
to the Company by such Participant expressly for use in any Registration
Statement. In no event shall any Participant, its directors, officers or any
Person who controls such Participant be liable or responsible for any amount in
excess of the amount by which the total amount received by such Participant with
respect to its sale of Transfer Restricted Securities or Series B Notes, as the
case may be, pursuant to a Registration Statement exceeds (i) the amount paid by
such Participant for such Transfer Restricted Securities or Series B Notes, as
the case may be, and (ii) the amount of any damages that such Participant, its
directors, officers or any Person who controls such Participant has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), a Participant shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of
17
such counsel, except as provided below, shall be at the expense of the
Participant). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Participants who sold a majority of the Transfer Restricted
Securities and Series B Notes sold by all such Participants, in the case of the
parties indemnified pursuant to Section 8(a), and by the Company and Guarantors,
in the case of parties indemnified pursuant to Section 8(b). The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than 20
Business Days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request or given its good faith
objection to such indemnification request. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in
this Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Guarantors, on
18
the one hand, and the Participants, on the other hand, from their sale of
Transfer Restricted Securities or Series B Notes or (ii) if the allocation
provided by clause 8(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and of the Participants, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantors,
on the one hand, and of the Participants, on the other hand, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Guarantor,
on the one hand, or by the Participants, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and judgments referred to
above shall be deemed to include, subject to the limitations set forth in
Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company, the Guarantors and each Participant agree that it
would not be just and equitable if contribution pursuant to this Section 8(d)
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 which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 8, no
Participant shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the total received by such Participant with
respect to the sale of Transfer Restricted Securities or Series B Notes pursuant
to a Registration Statement exceeds (i) the amount paid by such Participant for
such Transfer Restricted Securities or Series B Notes and (ii) the amount of any
damages which such Participant has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Participants' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Transfer Restricted Securities or Series B Notes
held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor (i) is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
19
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and
agree that any failure by the Company and/or the Guarantors to comply with their
respective obligations under Sections 3 and 4 hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantors' obligations under
Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. Neither the Company nor any
Guarantor will, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given without the written
consent of the Company and unless (i) in the case of Section 5 hereof and this
Section 10(c)(i), the Company has obtained the written consent of Holders of all
outstanding Transfer Restricted Securities and (ii) in the case of all other
provisions hereof, the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Company or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders
whose Transfer Restricted Securities are being tendered pursuant to the Exchange
Offer, and that does not affect directly or indirectly the rights of other
Holders whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject to such
Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on
the records of the Registrar under the Indenture, with a copy
to the Registrar under the Indenture; and
20
(ii) if to the Company or the Guarantors:
Dura Operating Corp.
2791 Research Drive
Rochester Hills, MI 48309
Telecopier No.: (561) 694-3707
Attention: Lawrence A. Denton
With a copy to:
Kirkland & Ellis LLP
200 E. Randolph Drive
Chicago, IL 60601
Telecopier No.: (312) 861-2200
Attention: Dennis M. Myers, P.C.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery. Copies of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address specified
in the Indenture.
Upon the date of filing of the Exchange Offer or a Shelf
Registration Statement, as the case may be, notice shall be delivered to J.P.
Morgan Securities Inc., on behalf of the Initial Purchasers, in the form
attached hereto as Exhibit A.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(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.
21
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
DURA OPERATING CORP.
By:__________________________________________________
Name: David R. Bovee
Title: Vice President, Chief Financial Officer and
Assistant Secretary
DURA AUTOMOTIVE SYSTEMS, INC.
By:__________________________________________________
Name: David R. Bovee
Title: Vice President, Chief Financial Officer and
Assistant Secretary
DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS, INC.
By:__________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and
Treasurer
UNIVERSAL TOOL & STAMPING COMPANY INC.
By:__________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
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ADWEST ELECTRONICS, INC.
By:___________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
DURA AUTOMOTIVE SYSTEMS OF INDIANA, INC.
By:___________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
ATWOOD AUTOMOTIVE INC.
By:___________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
MARK I MOLDED PLASTICS OF TENNESSEE, INC.
By:___________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
ATWOOD MOBILE PRODUCTS, INC.
By:___________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
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DURA G.P.
By: DURA OPERATING CORP., General Partner
By:___________________________________________________
Name: David R. Bovee
Title: Vice President, Chief Financial Officer and
Assistant Secretary
CREATION GROUP HOLDINGS, INC.
By:___________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
CREATION GROUP, INC.
By:___________________________________________________
Name: David R. Bovee
Title: President, Chief Financial Officer and Treasurer
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
COMERICA SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
WACHOVIA CAPITAL MARKETS, LLC
BARCLAYS CAPITAL INC.
ABN AMRO INCORPORATED
By: J.P. MORGAN SECURITIES INC.
For itself and as Representative of the
other Initial Purchasers
By: ___________________________
Authorized Signatory
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EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Attention:
From: Dura Operating Corp.
Series A 8 5/8% Senior Subordinated Notes due 2012
Date: ______________________
For your information only (NO ACTION REQUIRED):
Today, [date], we filed [an Exchange Registration Statement/a Shelf Registration
Statement] with the Securities and Exchange Commission relating to the Series A
8 5/8% Senior Subordinated Notes due 2012 as contemplated by the Registration
Rights Agreement dated November 4, 2003 among Dura Operating Corp., the
Guarantors parties thereto and the Initial Purchasers parties thereto. We
currently expect this registration statement to be declared effective within
_____ business days of the date hereof.
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