EXHIBIT 4.6(e)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated December 12, 2003 (the
"Agreement") is entered into by and among Tenneco Automotive Inc., a Delaware
corporation (the "Company"), the guarantors listed in Schedule 1 hereto (the
"Guarantors"), and the several initial purchasers listed in Schedule 2 hereto
(the "Initial Purchasers"), for whom Banc of America Securities LLC is acting as
representative.
The Company, the Guarantors and the Initial Purchasers are parties to
the Purchase Agreement dated December 8, 2003 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of $125 million
aggregate principal amount of the Company's 10 1/4% Senior Secured Notes due
2013 (the "Securities"), which will be guaranteed on a senior secured basis by
each of the Guarantors. As an inducement to the Initial Purchasers to enter into
the Purchase Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and the
rules and regulations thereunder, as amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior secured notes issued by the
Company and guaranteed by the Guarantors under the Indenture containing terms
identical to the Securities (except that the Exchange Securities will not be
subject to restrictions on transfer or to any increase in annual interest rate
for failure to comply with this Agreement) and to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the Exchange
Offer.
"Filing Date" shall mean with respect to the Shelf Registration
Statement required to be filed pursuant to Section 2(b)(iii), the 60th day after
the delivery of a notice pursuant to Section 2(b)(iii).
"Guarantors" shall have the meaning set forth in the preamble and shall
also include any Guarantor's successors.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indenture" shall mean the Indenture relating to the Securities dated
as of June 19, 2003 among the Company, the Guarantors and the Trustee, as
supplemented by the supplemental indenture relating to the Securities dated as
of December 12, 2003 among the Company, the Guarantors and the Trustee, and as
the same may be further amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 2 hereof.
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"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that any
Security shall cease to be a Registrable Security (i) when a Registration
Statement with respect to such Security has been declared effective under the
Securities Act and such Security has been exchanged or disposed of pursuant to
such Registration Statement, (ii) when such Security is eligible to be sold
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act upon the expiration of the time period referred
to in such rule or (iii) when such Security ceases to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including, without limitation, (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws in the United States of America (including
reasonable fees and disbursements of counsel for any Underwriters or Holders in
connection with blue sky qualification in the United States of America of any
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Company and the
Guarantors and, in the case of a Shelf Registration Statement, the reasonable
fees and disbursements of one counsel for the Holders (which counsel shall be
selected by the Majority Holders and which counsel may also be counsel for the
Initial Purchasers) and (viii) the fees and disbursements of the independent
public accountants of the Company and the Guarantors, including the expenses of
any special audits or "comfort" letters required by or incident to the
performance of and compliance with this Agree-
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ment, but excluding fees and expenses of counsel to the Underwriters (other than
fees and expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors filed with the SEC under the Securities Act that
covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement and all amendments and supplements to any such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors filed with the SEC under the
Securities Act that covers all the Registrable Securities (but no other
securities unless approved by the Holders whose Registrable Securities are to be
covered by such Shelf Registration Statement) on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
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2. Registration Under the Securities Act. (a) To the
extent not prohibited by any applicable law or applicable interpretations of the
Staff of the SEC, the Company and the Guarantors shall use their commercially
reasonable efforts to (i) cause to be filed an Exchange Offer Registration
Statement covering an offer to the Holders to exchange all the Registrable
Securities for Exchange Securities and (ii) have such Registration Statement
remain effective until 180 days after the closing of the Exchange Offer. The
Company and the Guarantors shall commence the Exchange Offer promptly after the
Exchange Offer Registration Statement is declared effective by the SEC and use
their commercially reasonable efforts to complete the Exchange Offer not later
than 60 days after such effective date.
The Company and the Guarantors shall commence the Exchange Offer by
mailing the related Prospectus, appropriate letters of transmittal and other
accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law,
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Securities validly tendered and not properly
withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange
Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for exchange
and a statement that such Holder is withdrawing its election to have
such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Company and the Guarantors that (i) any Exchange
Securities to be received by it will be acquired in the ordinary course of its
business, (ii) at the time of
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commencement of the Exchange Offer it has no arrangement or understanding with
any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities, (iii) it is not an "affiliate"
(within the meaning of Rule 405 under Securities Act) of the Company or any
Guarantor and (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), then such Holder will
deliver a Prospectus in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Company and
the Guarantors shall
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by
the Company and issue, and cause the Trustee to promptly authenticate
and deliver to each Holder, Exchange Securities equal in principal
amount to the principal amount of the Registrable Securities
surrendered by such Holder provided that, except as may be otherwise
required by the Indenture, in the case of any Registrable Securities
held in global form by a depositary, authentication and delivery to
such depositary of one or more Exchange Securities in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and
delivery requirement.
The Company and the Guarantors shall use their commercially reasonable
efforts to complete the Exchange Offer as provided above and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC and (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency with respect
to the Exchange Offer.
(b) In the event that (i) the Company and the Guarantors
determine that the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be completed as soon as practicable after the
last Exchange Date because it would violate any applicable law or applicable
interpretation of the Staff of the SEC, (ii) the Exchange Offer is not for any
other reason completed by the 210th day after the Closing Date, or (iii) if any
Initial Purchaser holds any Securities acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, and any such Initial Purchaser so requests in writing
on
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or prior to the 60th day after the consummation of the Exchange Offer, the
Company and the Guarantors shall use commercially reasonable efforts to cause to
be filed as soon as practicable after such determination, date or request, as
the case may be, a Shelf Registration Statement providing for the sale of all
the Registrable Securities by the Holders (or, in the case of clause (iii), any
requesting Initial Purchaser) thereof and to have such Shelf Registration
Statement declared effective by the SEC.
In the event that the Company and the Guarantors are required to file a
Shelf Registration Statement pursuant to clause (iii) of the preceding sentence,
the Company and the Guarantors shall use commercially reasonable efforts to file
and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer. Notwithstanding the foregoing, the Company and
the Guarantors may delay filing a Shelf Registration Statement, and any
amendment thereto, and may withhold efforts to cause such Shelf Registration
Statement, and any such amendment thereto, to become effective for a period of
up to 60 days, if (i) the Company determines in good faith that such Shelf
Registration Statement, and any such amendment thereto, might interfere with or
affect the negotiation or completion of any transaction that is being
contemplated by the Company (whether or not a final decision has been made to
undertake such transaction) at the time the right to delay is exercised or (ii)
such Shelf Registration Statement, and any such amendment thereto, would
otherwise require premature disclosure of non-public information that, in the
Company's judgment, exercised reasonably and in good faith, would have a
material adverse effect on or otherwise be detrimental to the Company; provided,
however, the Company may only exercise such right of delay or withholding of
efforts other than for purposes of avoiding its obligations under this
Agreement; provided further however, that the Company may not exercise such
right of delay or withholding of efforts more frequently than two times in any
12-month period and the aggregate period of any such delays or withholdings
shall not exceed 60 days in any such 12-month period.
The Company and the Guarantors agree to use commercially reasonable
efforts to keep the Shelf Registration Statement continuously effective until
all of the Registrable Securities covered thereby are eligible for resale under
Rule 144(k) under the Securities Act upon the expiration of the time period
referred to in such rule or such earlier time when all the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement (the "Shelf Effectiveness Period"). The
Company and the Guarantors further agree to supplement or amend the Shelf
Registration Statement and the related Prospectus if required by the rules,
regulations or instructions applicable to the registration form used by the
Company and the Guarantors for such Shelf Registration Statement or by the
Securities Act or by any other rules and regulations thereunder for shelf
registration or if reasonably requested
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by a Holder of Registrable Securities with respect to information relating to
such Holder, and to use commercially reasonable efforts to cause any such
amendment to become effective and such Shelf Registration Statement and
Prospectus to become usable as soon as thereafter practicable. The Company and
the Guarantors agree to furnish to the Holders of Registrable Securities covered
by any such Shelf Registration Statement copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all
Registration Expenses in connection with the registration pursuant to Section
2(a) and Section 2(b) hereof. Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Exchange Offer
Registration Statement or Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC.
In the event that (i) either the Exchange Offer is not completed or a
Shelf Registration Statement required under Section (2)(b)(i) or (ii) hereof is
not declared effective on or prior to the 210th day after the Closing Date (the
"Target Registration Date") or (ii) a Shelf Registration Statement required
under Section 2(b)(iii) hereof is not declared effective on or prior to the 60th
day following the Filing Date (also a "Target Registration Date"), the interest
rate on the Registrable Securities will be increased by (i) 0.25% per annum for
the first 90-day period immediately following the applicable Target Registration
Date and (ii) an additional 0.25% per annum with respect to each subsequent
90-day period, in each case until the Exchange Offer is completed or the Shelf
Registration Statement, if required hereby, is declared effective by the SEC or
the Securities covered thereby are eligible for resale under Rule 144(k) under
the Securities Act upon the expiration of the time period referred to in such
rule; provided however, that in no event shall the aggregate amount of
additional interest accruing under this paragraph exceed in the aggregate 1.00%
per annum.
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness Period, and such
failure to remain effective or usable exists for more than 60 days (whether or
not consecutive) in any 12-month period, then the interest rate on the
Registrable Securities will be increased by 1.00% per annum commencing on the
61st day in such 12-month period and ending on such date that the Shelf
Registration Statement has again been declared effective or the Prospectus again
becomes usable.
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In no event shall the Company or Guarantors be obligated to pay
additional interest under more than one provisions of this Section 2(d) at any
one time. Upon the effectiveness of the Exchange Offer Registration Statement or
the Shelf Registration Statement (in the case of clauses (i) and (ii) of the
second paragraph of this Section 2(d), as applicable) or the Shelf Registration
Statement which had ceased to remain effective (in the case of the penultimate
paragraph of this Section 2(d)), or the Securities become eligible for sale
pursuant to Rule 144(k) under the Securities Act upon the expiration of the time
period referred to in such rule (in the case of the second and third paragraphs
of this Section 2(d)), additional interest on the Securities as a result of such
provisions (or the relevant subclause thereof), as the case may be, shall cease
to accrue.
(e) Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company and the Guarantors acknowledge
that any failure by the Company or the Guarantors to comply with their
obligations under Section 2(a) and Section 2(b) 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 Section
2(a) and Section 2(b) hereof.
(f) No Holder of Registrable Securities may include any
of its Registrable Securities in any Shelf Registration if such Holder shall
have failed to furnish to the Company the information with respect to such
Holder and the proposed disposition specified in Items 507 and 508 (as
applicable) of Regulation S-K under the Securities Act and any other applicable
rules, regulations or policies of the SEC for use in connection with any Shelf
Registration or Prospectus included therein. No Holder of Registrable Securities
shall be entitled to additional interest pursuant to Section 2(b) if such Holder
shall have failed to provide all such information. Each selling Holder as to
which a Shelf Registration is being effected agrees to furnish promptly to the
Company additional information to be disclosed so that the information
previously furnished to the Company by such Holder does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statement therein not misleading.
3. Registration Procedures. In connection with their
obligations pursuant to Section 2(a) and Section 2(b) hereof, the Company and
the Guarantors shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the Securities Act, which form (x) shall
be selected by the Company and the Guarantors, (y) shall, in the case of a Shelf
Registration, be available for
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the sale of the Registrable Securities to be included therein by the selling
Holders thereof and (z) shall comply as to form in all material respects with
the requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use commercially reasonable
efforts to cause such Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period in
accordance with Section 2 hereof and cause each Prospectus to be supplemented by
any required prospectus supplement and, as so supplemented, to be filed pursuant
to Rule 424 under the Securities Act; and keep each Prospectus current during
the period described in Section 4(3) of and Rule 174 under the Securities Act
that is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities covered thereby, to counsel for the Initial
Purchasers, to counsel for such Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto, as may be reasonably requested in order to
facilitate the sale or other disposition of the Registrable Securities covered
thereunder; and the Company and the Guarantors consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with applicable
law by each of the selling Holders of Registrable Securities and any such
Underwriters in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use commercially reasonable efforts to register or
qualify the Registrable Securities under all applicable state securities or blue
sky laws of such jurisdictions in the United States of America as any Holder of
Registrable Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement is declared
effective by the SEC; cooperate with the Holders in connection with any filings
required to be made with the National Association of Securities Dealers, Inc.;
and do any and all other acts and things that may be reasonably necessary or
advisable to enable each Holder to complete the disposition in each such
jurisdiction of the Registrable Securities owned by such Holder; provided that
neither the Company nor any Guarantor shall be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
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(e) in the case of a Shelf Registration, notify each
Holder of Registrable Securities covered thereby, counsel for such Holders and
counsel for the Initial Purchasers promptly and, if requested by any such Holder
or counsel, confirm such advice in writing (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been filed
and becomes effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company or any Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to an offering of such Registrable Securities cease to be true and
correct in all material respects or if the Company or any Guarantor receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the period
a Shelf Registration Statement is effective that makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or that requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and of the delay in filing a Shelf Registration Statement, or any amendment
thereto, or of the withholding of efforts to cause such Shelf Registration
Statement, or any such amendment thereto, to become effective, pursuant to the
third sentence of Section 2(b) and (vi) of any determination by the Company or
any Guarantor that a post-effective amendment to a Registration Statement would
be appropriate; provided that, in the case of clause (iv), (v) or (vi), with
respect to any event, development or transaction that would permit the Company
to exercise its rights of delay or withholding of efforts under the third
sentence of Section 2(b), the Company shall provide written notice that, in its
good faith judgment, such an event, development or transaction has occurred or
is pending and that it is exercising its rights of delay or withholding of
efforts pursuant to the third sentence of Section 2(b) of this Agreement;
provided further that the Company shall not be required to describe such event,
development or transaction in the written notice provided.
(f) use their commercially reasonable efforts to obtain
the withdrawal of any order suspending the effectiveness of a Registration
Statement at the earliest possible moment and provide immediate notice to each
Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities covered thereby, without charge, at least one
conformed copy of each
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Registration Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities covered thereby to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and enable such
Registrable Securities to be issued in such denominations and registered in such
names (consistent with the provisions of the Indenture) as the selling Holders
may reasonably request at least one Business Day prior to the closing of any
sale of Registrable Securities;
(i) subject to the third sentence of Section 2(b), in the
case of a Shelf Registration, upon the occurrence of any event contemplated by
Section 3(e)(v) hereof, use their commercially reasonable efforts to prepare and
file with the SEC a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to purchasers of the Registrable Securities, such Prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company and the Guarantors
shall notify the Holders of Registrable Securities covered by such Shelf
Registration to suspend use of the Prospectus as promptly as practicable after
the occurrence of such an event, and such Holders hereby agree to suspend use of
the Prospectus until the Company and the Guarantors have amended or supplemented
the Prospectus to correct such misstatement or omission and expressly agree to
maintain the information contained in such notice confidential (except that such
information may be disclosed to their counsel) until it has been publicly
disclosed by the Company; provided that, with respect to any event, development
or transaction that would permit the Company and the Guarantors to exercise
their rights of delay or withholding of efforts under the third sentence of
Section 2(b), such notice shall state that, in the Company's good faith
judgment, such an event, development or transaction has occurred or is pending
and that it is exercising its rights of delay or withholding of efforts pursuant
to the third sentence of Section 2(b) of this Agreement; provided further that
the Company shall not be required to describe such event, development or
transaction in such notice.
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or of any document that is
to be incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of a
Shelf Registration Statement, to the Holders of Registrable Securities covered
thereby and their counsel) and make such of the representatives of the Company
and the Guarantors as shall be reasonably requested by the Initial Purchasers or
their coun-
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sel (and, in the case of a Shelf Registration Statement, the Holders of such
Registrable Securities or their counsel) available for discussion of such
document; and the Company and the Guarantors shall not, at any time after
initial filing of a Registration Statement, file any Prospectus, any amendment
of or supplement to a Registration Statement or a Prospectus, or any document
that is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in the case
of a Shelf Registration Statement, the Holders of Registrable Securities covered
thereby and their counsel) shall not have previously been advised and furnished
a copy or to which the Initial Purchasers or their counsel (and, in the case of
a Shelf Registration Statement, such Holders or their counsel) shall reasonably
object on a timely basis, except for any Registration Statement or amendment
thereto or related Prospectus or supplement thereto (a copy of which has been
previously furnished as provided in the preceding sentence) which counsel to the
Company has advised the Company in writing (with a copy to the objecting Initial
Purchasers or Holders, as the case may be) is required to be filed in order to
comply with applicable law;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of
a Registration Statement, that is, in each case, the same CUSIP number then
borne by the Company's outstanding 10 1/4% Senior Secured Notes, Series B,
issued on October 24, 2003;
(l) cause the Indenture to be qualified under the Trust
Indenture Act in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be; cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust Indenture
Act; and execute, and use their reasonable best efforts to cause the 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 the Indenture to
be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available
for inspection by a representative of the Holders of the Registrable Securities
covered thereby (an "Inspector"), any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and attorneys and
accountants designated by the Holders, at reasonable times and in a reasonable
manner, all pertinent financial and other records, documents and properties of
the Company and the Guarantors, and cause the respective officers, directors and
employees of the Company and the Guarantors to supply all information reasonably
requested by any such Inspector, Underwriter, attorney or accountant in
connection with a Shelf Registration Statement; provided that each such
representative, Underwriter, attorney or accountant shall agree in writing that
it will keep such information confidential and that it will not disclose any of
the information that the Company determines, in good faith, to be confidential
and notifies them is confidential unless (i) the disclosure of such information
is required by law (including as necessary
13
to avoid or correct a material misstatement or material omission in such
Registration Statement or Prospectus), (ii) the release of such information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (iii) such information has been made generally available to the
public other than by any of such persons or their affiliates; provided, however,
that each such representative, underwriter, attorney or accountant shall use
commercially reasonable efforts to give prior notice as soon as practicable to
the Company of the potential disclosure of any information by such person
pursuant to clause (i) or (ii) of this sentence in order to permit the Company
to obtain a protective order (or waive the provisions of this paragraph (m));
(n) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, promptly incorporate in a
Prospectus supplement or post-effective amendment such information with respect
to such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be
incorporated in such filing; and
(o) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority in principal amount of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Company and the Guarantors (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "comfort" letters from the independent certified public accountants of
the Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any business
acquired by the Company or any Guarantor for which financial statements and
financial data are or are required to be included in the Registration Statement)
addressed to each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type customarily
covered in "comfort" letters in connection with underwritten offerings and (iv)
deliver such documents and certificates as may be reasonably requested by the
Holders of a majority in principal amount of the Registrable Securities being
sold thereunder or the Underwriters, and which are customarily delivered in
underwritten offerings, to evidence the con-
14
tinued validity of the representations and warranties of the Company and the
Guarantors made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
and the Guarantors of the happening of any event of the kind described in
Section 3(e)(iii) or 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof and, if so directed by the Company and the
Guarantors, such Holder will deliver to the Company and the Guarantors all
copies in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities that is
current at the time of receipt of such notice.
If the Company and the Guarantors shall give any such notice to suspend
the disposition of Registrable Securities pursuant to a Registration Statement,
the Company and the Guarantors shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company and the Guarantors may give any such notice only
twice during any 365-day period and any such suspensions shall not exceed 30
days for each suspension and there shall not be more than two suspensions in
effect during any 365-day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer that
receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by a Participating Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Par-
15
ticipating Broker-Dealers or specifying the amount of Exchange Securities owned
by them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligation under the Securities Act in
connection with resales of Exchange Securities for their own accounts, so long
as the Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other
provisions of this Agreement, the Company and the Guarantors agree to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period of
up to 180 days after the last Exchange Date (as such period may be extended
pursuant to the penultimate paragraph of Section 3 of this Agreement), if
reasonably requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above. The Company and the
Guarantors further agree that Participating Broker-Dealers shall be authorized
to deliver such Prospectus during such period in connection with the resales
contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the
Company, any Guarantor or any Holder with respect to any request that they may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company and
each Guarantor, jointly and severally, agree to indemnify and hold harmless each
Initial Purchaser and each Holder, their respective affiliates, directors and
officers and each person, if any, who controls any Initial Purchaser or any
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any Prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
(i) insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to any Initial Purchaser or any Holder furnished to the Company in writing by
any Initial Purchaser or any selling Holder expressly for use therein or (ii)
that with respect to any such untrue statement in or omission from or alleged
untrue statement in or omission from any preliminary Prospectus, the indemnity
provided in this Section 5(a) shall not inure to the benefit of any Holder from
whom the person asserting any such loss, claim, damage or liability received
Registrable Securities or Exchange
16
Securities to the extent that such loss, claim, damage or liability results from
the fact that (A) such Holder was required under the Securities Act to deliver a
copy of the final Prospectus to such person at or prior to the written
confirmation of the sale of Registrable Securities or Exchange Securities to
such person, (B) a copy of the final Prospectus was not so sent or given to such
person at or prior to the written confirmation of the sale of such Registrable
Securities or Exchange Securities to such person and (C) such untrue statement
in or omission from or alleged untrue statement in or omission from the
preliminary Prospectus was corrected in the final Prospectus unless, in either
case, such failure to deliver the final Prospectus was a result of
non-compliance by the Company or any of the Guarantors with Section 2(b) or 3
hereof. In connection with any Underwritten Offering permitted by Section 3, the
Company and the Guarantors, jointly and severally, will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their respective affiliates and
each Person who controls such Persons (within the meaning of the Securities Act
and the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors, the Initial Purchasers
and the other selling Holders, their respective affiliates, the directors of the
Company and the Guarantors, each officer of the Company and the Guarantors who
signed the Registration Statement and each Person, if any, who controls the
Company, the Guarantors, any Initial Purchaser and any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement or any Prospectus.
(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 indemnification may be sought
pursuant to either paragraph (a) or (b) above, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 5 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 5. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
17
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 5 that the Indemnifying Person may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable 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 as they are incurred.
Any such separate firm (x) for any Initial Purchaser, its affiliates, directors
and officers and any control Persons of such Initial Purchaser shall be
designated in writing by Banc of America Securities LLC, (y) for any other
Holders, their affiliates, directors and officers and any control Persons of
such Holders shall be designated in writing by the Majority Holders and (z) in
all other cases shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment to the extent provided herein and therein.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested that an Indemnifying Person reimburse the Indemnified
Person for reasonable fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional 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 in-
18
clude any statement as to or any admission of fault, culpability or a failure to
act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors from the offering of the
Securities and the Exchange Securities, on the one hand, and by the Holders from
receiving Securities or Exchange Securities registered under the Securities Act,
on the other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Company and the Guarantors on the one hand and the Holders on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Guarantors on the one
hand and the Holders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Guarantors and the Holders agree
that it would not be just and equitable if contribution pursuant to this Section
5 were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses incurred by such Indemnified Person in connection with
any such action or claim. Notwithstanding the provisions of this Section 5, in
no event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities
sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
19
(f) The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained
in this Section 5 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Initial Purchasers or any Holder, their respective affiliates or
any Person controlling any Initial Purchaser or any Holder, or by or on behalf
of the Company or the Guarantors, their respective affiliates or the officers or
directors of or any Person controlling the Company or the Guarantors, (iii)
acceptance of any of the Exchange Securities and (iv) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company and the
Guarantors, jointly and severally, represent, warrant and agree that (i) 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 any other outstanding
securities issued or guaranteed by the Company or any Guarantor under any other
agreement and (ii) neither the Company nor any Guarantor has entered into, or on
or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Guarantors have
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided that no
amendment, modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder. Any
amendments, modifications, supplements, waivers or consents pursuant to this
Section 6(b) shall be by a writing executed by each of the parties hereto.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase Agreement;
20
(ii) if to the Company and the Guarantors, initially at the Company's address
set forth in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 6(c); and
(iii) to such other persons at their respective addresses as provided in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(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 answered back, if telexed; when
receipt is 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.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees 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 Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all the terms of this Agreement, and by taking and
holding such Registrable 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 and such Person shall be entitled to receive the benefits hereof.
The Initial Purchasers (in their capacity as Initial Purchasers) shall have no
liability or obligation to the Company or the Guarantors with respect to any
failure by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. The Company and
the Guarantors shall not, and shall use their reasonable best efforts to cause
their affiliates (as defined in Rule 405 under the Securities Act) not to,
purchase and then resell or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a
third party beneficiary 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 it
deems such enforcement necessary or advisable to protect its rights or the
rights of other Holders hereunder.
(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
21
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, are not a part of this Agreement and shall not
limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and
supersedes all oral statements and prior writings with respect thereto. If any
term, provision, covenant or restriction contained in this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable or
against public policy, the remainder of the terms, provisions, covenants and
restrictions contained herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated. The Company, the Guarantors and the
Initial Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, void or
unenforceable provisions.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TENNECO AUTOMOTIVE INC.
By: _______________________________________________
Name:
Title:
TENNECO AUTOMOTIVE OPERATING COMPANY INC.
By: _______________________________________________
Name:
Title:
THE PULLMAN COMPANY
By: _______________________________________________
Name:
Title:
CLEVITE INDUSTRIES INC.
By: _______________________________________________
Name:
Title:
TENNECO GLOBAL HOLDINGS INC.
By:
_______________________________________________
Name:
Title:
TMC TEXAS INC.
23
By: _______________________________________________
Name:
Title:
TENNECO INTERNATIONAL HOLDING CORP.
By:
_______________________________________________
Name:
Title:
Confirmed and accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
For itself and on behalf of the
several Initial Purchasers
By: ______________________________
Authorized Signatory
24
Schedule 1
List of Subsidiary Guarantors
Tenneco Automotive Operating Company Inc. Delaware
The Pullman Company Delaware
Clevite Industries Inc. Delaware
Tenneco Global Holdings Inc. Delaware
TMC Texas Inc. Delaware
Tenneco International Holding Corp. Delaware
Schedule 2
Initial Purchasers
Banc of America Securities, LLC
Citigroup Global Markets Inc.
Commerzbank Aktiengesellschaft
Banc One Capital Markets, Inc.
BNY Capital Markets, Inc.