EXHIBIT 10.34
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
dated as of May 11, 1999
by and among
SPEEDWAY MOTORSPORTS, INC.,
as Company,
ATLANTA MOTOR SPEEDWAY, INC.,
BRISTOL MOTOR SPEEDWAY, INC.,
CHARLOTTE MOTOR SPEEDWAY, INC.,
SPR ACQUISITION CORPORATION, TEXAS MOTOR SPEEDWAY, INC.,
600 RACING, INC, SPEEDWAY FUNDING CORP.,
SONOMA FUNDING CORPORATION,
SPEEDWAY CONSULTING & DESIGN, INC.,
THE SPEEDWAY CLUB, INC., AND
INEX CORP.
LAS VEGAS MOTOR SPEEDWAY, LLC
SMI SYSTEMS, LLC
SPEEDWAY SYSTEMS LLC
as Guarantors
and
NATIONSBANC MONTGOMERY SECURITIES LLC
FIRST UNION CAPITAL MARKETS CORP.
J.C. BRADFORD & CO., L.L.C.
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of May 11, 1999, by and among Speedway Motorsports, Inc., a
Delaware corporation (the "Company"), and each of the domestic subsidiaries of
the Company set forth on the signature pages hereto (each, a "Guarantor" and,
collectively, the "Guarantors"), and NationsBanc Montgomery Securities LLC,
First Union Capital Markets Corp. and J.C. Bradford & Co., L.L.C. (each, an
"Initial Purchaser" and, collectively, the "Initial Purchasers"), each of whom
has agreed severally to purchase the Company's 8 1/2% Senior Subordinated Notes
due 2007 (the "Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement dated May 4,
1999 (the "Purchase Agreement"), by and among the Company, the Guarantors and
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Notes and the guarantees of the Guarantors (the "Guarantees" and
collectively with the Notes, the "Securities"), the Company and the Guarantors
(collectively, the "Issuers") have 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 7 of
the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein without definition shall have the
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Advice: As defined in Section 6(c).
Agreement: As defined in the preamble hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereof.
Consummate or Consummation: An Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the New Securities to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (iii) the delivery by the Issuers
to the registrar under the Indenture of New Securities in the same aggregate
principal amount as the aggregate principal amount of Securities that were
tendered by Holders and holders of Old Notes thereof pursuant to the Exchange
Offer.
Damages Payment Date: With respect to the Securities or the New
Securities, each Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Issuers under the Act of the
New Securities pursuant to a Registration Statement pursuant to which the
Issuers offer the Holders of all outstanding Transfer Restricted Securities and
holders of the Old Notes the opportunity to exchange all such outstanding
Transfer Restricted Securities and the Old Notes held by such Holders and
holders of the Old Notes for New Securities in an aggregate principal amount
equal to the aggregate principal amount of the Transfer Restricted Securities
and the Old Notes tendered in such exchange offer by such Holders and holders of
the Old Notes.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Guarantees: As defined in the preamble hereof.
Guarantor or Guarantors: As defined in the preamble hereof.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture dated as of May 11, 1999, among the Issuers
and U.S. Trust Bank National Association, as trustee (the "Trustee"), pursuant
to which the Securities and New Securities are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with the terms
thereof.
Initial Purchaser or Initial Purchasers: As defined in the preamble
hereof.
Interest Payment Date: As defined in the Indenture, the Securities and
the New Securities.
Issuers: As defined in the preamble hereof.
Liquidated Damages: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
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New Securities: Debt securities of the Company and related guarantees
of the Guarantors identical in all material respects to (i) the Securities and
the Guarantees, respectively (except that the transfer restrictions pertaining
to such Securities and Guarantees will be eliminated) to be issued under the
Indenture, and (ii) the Old Notes and the Old Guarantees.
Notes: As defined in the preamble hereof.
Old Guarantees: the subsidiary guarantees on the Old Notes.
Old Notes: the Company's outstanding 8 1/2% Senior Subordinated Notes
due 2007 issued on August 4, 1997.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereof.
Record Holder: With respect to any Damages Payment Date relating to
the Securities or the New Securities, each Person who is a Holder of Securities
or New Securities, as the case may be, on the record date with respect to the
Interest Payment Date on which such Damages Payment Date shall occur.
Registrar: As defined in the Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers
relating to (a) an offering of New Securities pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities and the Old
Notes pursuant to the Shelf Registration Statement, which is filed pursuant to
the provisions of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Securities: As defined in the preamble hereof.
Shelf Filing Deadline: As defined in Section 4(a)(x) hereof.
Shelf Registration Statement: As defined in Section 4(a)(x) hereof.
TIA: The Trust Indenture Act of 1939, as amended, as in effect on the
date of the Indenture.
Transfer Restricted Securities: Each Security, until the earliest to
occur of (a) the date on
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which such Security is exchanged by a person other than a Broker-Dealer for a
New Security in the Exchange Offer, (b) following the exchange by a
Broker-Dealer in the Exchange Offer of a Security for a New Security, the date
on which such New Security is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (c) the date on which
such Security has been effectively registered under the Act and disposed of in
accordance with a Shelf Registration Statement or (d) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) Transfer Restricted Securities and Old Notes. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities and the Old Notes (only with respect to the Exchange Offer).
(b) Holders of Transfer Restricted Securities. A Person is deemed to
be a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Issuers shall (i) cause to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 60 days after the Closing Date, a Registration Statement under
the Act relating to the New Securities and the Exchange Offer, (ii) use their
best efforts to cause such Registration Statement to become effective at the
earliest practicable time, but in no event later than 120 days after the Closing
Date, (iii) in connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings in connection with the
registration and qualification of the New Securities to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer and (iv) upon the effectiveness of such RegistrationStatement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the New Securities to be offered in exchange for the
Transfer Restricted Securities and the Old Notes and to permit resales of New
Securities held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no
event shall such period be less than 20 business days. The
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Company shall cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than New Securities shall be included
in the Exchange Offer Registration Statement. The Company shall use its best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Securities that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Securities pursuant to the Exchange Offer; PROVIDED, HOWEVER, such 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 any resales of the New Securities received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Securities and New Securities held by any such
Broker-Dealer except to the extent required by the Commission.
The Issuers shall use their best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended, as
required by the provisions of Section 6(c) below, to the extent necessary to
ensure that it is available for resales of the New Securities acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of one year from the
date on which the Exchange Offer Registration Statement is declared effective.
The Issuers will be permitted to suspend use of the Prospectus included in the
Exchange Offer Registration Statement during periods of time and in
circumstances relating to pending corporate developments and public filings with
the Commission and similar events in which the use of the Prospectus for the
offer or sale of the Securities, in the reasonable opinion of the Issuers, may
give rise to claims of liability against the Issuers under applicable federal or
state securities law.
The Issuers shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales.
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SECTION 4. SHELF REGISTRATION.
(a) Shelf Registration. If (i) the Issuers are not required to file an
Exchange Offer Registration Statement or permitted to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 20 business days of the Consummation of the
Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that a Holder
or a holder of the Old Notes may not resell the New Securities acquired by it in
the Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by a Holder or holder of the Old
Notes, as the case may be, or (C) that such Holder is a Broker-Dealer and holds
Securities acquired directly from the Company or one of its affiliates, then the
Issuers shall:
(x) use their best efforts to file a shelf registration
statement pursuant to Rule 415 under the Act, which may be an amendment
to the Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement") on or prior to the earliest to occur of
(1) the 45th day after the date on which the Company determines that it
is not required or permitted to file the Exchange Offer Registration
Statement, (2) the 45th day after the date on which the Company
receives notice from a Holder of Transfer Restricted Securities or
holder of the Old Notes as contemplated by clause (ii) above, or (3)
the 120th day after the Closing Date (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities the Holders
of which shall have provided the information required pursuant to
Section 4(b) hereof; and
(y) use their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the
90th day after the obligation to file such Shelf Registration Statement
arises.
The Issuers shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and 6(c) hereof to the extent
necessary to ensure that it is available for resales of Securities or New
Securities by the Holders of Transfer Restricted Securities or holders of the
Old Notes entitled to the benefit of this Section 4(a), and to ensure that it
conforms 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 three years following the Closing Date or such shorter period
that will terminate when there are no Transfer Restricted Securities
outstanding. The Issuers will be permitted to suspend use of the Prospectus
included in the Shelf Registration Statement during periods of time and in
circumstances relating to pending corporate developments and public filings with
the Commission and similar events in which the use of the Prospectus for the
offer or sale of Securities, in the reasonable opinion of the Issuers, may give
rise to claims of liability against the
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Issuers under applicable federal and state securities laws.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request 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 used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES.
If (i) any of the Registration Statements required by this Agreement
is not filed with the Commission on or prior to the date specified for such
filing in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable (including as contemplated by the last sentence of the penultimate
paragraph of Section 3(c) hereof or the last sentence of Section 4(a) hereof)
for its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Issuers hereby jointly and
severally agree to pay liquidated damages ("Liquidated Damages") to each Holder
of Securities, with respect to the first 90-day period immediately following the
occurrence of such Registration Default, in an amount equal to $.05 per $1,000
principal amount of Securities held by such Holder for each week or portion
thereof that the Registration Default continues. The amount of the Liquidated
Damages shall increase by an additional $.05 per week per $1,000 in principal
amount of Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Liquidated
Damages of $.30 per week per $1,000 principalamount of Securities. All accrued
Liquidated Damages shall be paid to Record Holders by the Company by wire
transfer of immediately available funds or by federal funds check on each
Damages Payment Date, as provided in the Indenture. Following the cure of all
Registration Defaults relating to any particular Securities, the accrual of
Liquidated Damages with respect to such Securities will cease.
All obligations of the Issuers set forth in the preceding paragraph
that are outstanding with respect to any Security shall survive until such time
as all such obligations with respect to such Security shall have been satisfied
in full.
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SECTION 6. REGISTRATION PROCEDURES.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer. the Issuers shall comply with all of the provisions of Section
6(c) below, shall use their best efforts to effect such exchange to permit the
sale of the Securities and the New Securities in accordance with the intended
method or methods of distribution thereof and shall comply with all of the
following provisions:
(i) If, in the reasonable opinion of counsel to the Company,
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Issuers hereby agree to seek a no-action letter or
other favorable decision from the Commission allowing the Issuers to
Consummate an Exchange Offer for the Securities or the Old Notes. The
Issuers hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The
Issuers hereby agree, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities or holder of the Old Notes shall furnish, upon
the request of the Company, prior to the Consummation thereof, a
written representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of the
Issuers, (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 New Securities to be issued in the Exchange
Offer and (C) it is acquiring the New Securities in its ordinary
course of business. In addition, all such Holders of Transfer
Restricted Securities or holders of the Old Notes shall otherwise
cooperate in the Issuers' preparations for the Exchange Offer (to meet
Commission requirements with respect to the Exchange Offer or
otherwise). Each Holder, by its receipt of the Securities,
acknowledges and agrees that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the New
Securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in Morgan Stanley and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including 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 should be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of New Securities
obtained by such
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Holder in exchange for Securities acquired by such Holder directly
from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuers shall provide a supplemental letter
to the Commission (A) stating that the Issuers 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) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B)
including a representation that neither the Company nor any Guarantor
has entered into any arrangement or understanding with any Person to
distribute the New Securities to be received in the Exchange Offer and
that to the best of the Company's information and belief (subject to
information provided to the Issuers by the Holders or the holders of
the Old Notes), each Holder or holder of the Old Notes participating in
the Exchange Offer is acquiring the New Securities in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the New Securities
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers shall comply with all the provisions of
Section 6(c) below and shall use their best efforts to effect such registration
to permit the sale of the Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant thereto the Issuers will
as expeditiously as possible prepare and file with the Commission a Registration
Statement relating to the shelf registration on any appropriate form under the
Act, which form shall be available for the sale of the Securities in accordance
with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of the
Securities or New Securities by Broker-Dealers), the Issuers shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Act or any regulation thereunder,
financial statements of the Guarantors) for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the occurrence of
any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Issuers shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B),
use its best efforts to cause such amendment to be declared effective
and such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective
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amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Securities covered by
such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with the applicable provisions of Rules 424 and 430A
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) advise the underwriter(s), if any, and selling holders
of securities covered by such Registration Statement promptly and, if
requested by such Persons, to confirm such advice in writing, (A) when
the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has
become effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the 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 or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Issuers shall use their
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to each of the selling holders of securities
covered by such Registration Statement and each of the underwriter(s),
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 of such holders of securities covered by such Registration
Statement and underwriter(s), if any, for a period of at least three
business days, and the Issuers will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such
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documents incorporated by reference) to which a selling holder of
securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within three business
days after the receipt thereof;
(v) to the extent practicable, promptly prior to the filing of
any document that is to be incorporated by reference into a
Registration Statement or Prospectus, make available and, if requested,
provide copies of such document to the selling holders of securities
covered by such Registration Statement and to the underwriter(s), if
any, make the Issuers' representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such
selling holders of securities covered by such Registration Statement or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling holders of securities covered by such Registration Statement,
any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such
selling holders of securities covered by such Registration Statement or
any of the underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Issuers and cause the
Issuers' officers, directors and employees to supply all information
reasonably requested by any such holder of securities covered by such
Registration Statement, underwriter, attorney or accountant in
connection with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) if requested by any selling holders of securities
covered by such Registration Statement or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling holders of securities covered by such
Registration Statement and underwriter(s), if any, may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal amount
of Transfer Restricted Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Issuers
are notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(viii) use their best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be rated with the
appropriate rating agencies, if not rated, and so requested by the
holders of a majority in aggregate principal amount of the Securities
and New Securities covered thereby or the underwriter(s), if any;
(ix) furnish to each selling holder of securities covered by
such Registration Statement and each of the underwriter(s), if any,
without charge, at least one copy of the
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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) deliver to each selling holder of securities covered by
such Registration Statement and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Issuers hereby consent to the use
of the Prospectus and any amendment or supplement thereto by each of
the selling holders of securities covered by such Registration
Statement and each of the underwriter(s), if any, in connection with
the offering and the sale of the Transfer Restricted Securities covered
by the Prospectus or any amendment or supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by any Initial
Purchaser or by any Holder of Transfer Restricted Securities or
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Issuers shall:
(A) furnish to each Initial Purchaser, each selling
holder of securities covered by such Registration Statement
and each underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily made by
issuers to underwriters in primary underwritten offerings,
upon the date of the Consummation of the Exchange Offer and,
if applicable, the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (y) the President or any
Vice President and (z) a principal financial or
accounting officer of the Company confirming, as of
the date thereof, the matters set forth in paragraphs
(b), (c) and (d) of Section 7 of the Purchase
Agreement and such other matters as such parties 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 Issuers, covering
the matters set forth in paragraph (g) of Section 7
of the Purchase Agreement and such other matter as
such parties may reasonably request, and in any event
including a
12
statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Issuers, representatives of
the independent public accountants for the Issuers,
the Initial Purchasers' representatives and the
Initial Purchasers' counsel in connection with the
preparation of such Registration Statement and the
related Prospectus and have considered the matters
required to be stated therein and the statements
contained therein, and although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements, on the basis of the
foregoing, 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 Prospectus included in the Exchange Offer
Registration Statement, as of the date of
Consummation, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or that the
Prospectus contained in such Registration Statement
as of its date and, in the case of the opinion dated
the date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading. In
connection with 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 exhibits, the
financial statements, notes and schedules and other
financial and statistical data included in any
Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated as of
the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Issuers'
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 7(k) of the Purchase Agreement,
without exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement
13
entered into by the Issuers pursuant to this clause (xi), if
any.
If at any time the Issuers become aware that the representations and
warranties of the Issuers contemplated in clause (A)(1) above cease to be true
and correct, the Issuers shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling holder of securities covered by such
Registration Statement promptly and, if requested by such Persons, shall confirm
such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling holders of securities covered by
such Registration Statement, the underwriter(s), if any, and their
respective 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 of securities covered by such Registration Statement or
underwriter(s) may reasonably request and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; PROVIDED, HOWEVER, that neither the
Company nor any of the Guarantors 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) issue, upon the request of any Holder of Securities
covered by the Shelf Registration Statement, New Securities having an
aggregate principal amount equal to the aggregate principal amount of
Securities surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such New Securities to be
registered in the name of such Holder or in the name of the
purchaser(s) of such Securities or New Securities, as the case may be;
in return, the Securities held by such Holder shall be surrendered to
the Company for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities, if any,
as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or
14
have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any qualified independent
underwriter) that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to Consummate
the disposition of such Transfer Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of the Securities and New Securities
to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use their best efforts to cause the Trustee to execute
all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant
15
to the applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Issuers' expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice. In
the event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES.
(a) All expenses incident to the Issuers' performance of or compliance
with this Agreement will be borne by the Company or the respective Guarantor,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD (and, if
applicable, the fees and expenses of any qualified independent underwriter and
its counsel that may be required by the rules and regulations of the NASD));
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the New Securities to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v) all application
and filing fees in connection with listing the Securities and New Securities on
a national securities exchange or automated quotation system; and (vi) all fees
and disbursements of independent certified public accountants of the Issuers
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Issuers will bear their 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 any Issuer.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Latham & Watkins or such other counsel as may be chosen by the Holders of a
majority
16
in principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION.
(a) The Issuers, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any Holder
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a controlling person) and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "Indemnified Holder"), to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, judgments, actions and
expenses (including without limitation and as soon as reasonably practicable,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement will be in addition
to any liability that the Issuers otherwise may have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Issuers, such Indemnified Holder shall promptly notify the Issuers in
writing (PROVIDED, that the failure to give such notice (i) will not relieve the
Issuers from liability under paragraph (a) above unless and only to the extent
it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) above). Such Indemnified Holder shall have the right to employ its
own counsel in any such action and the fees and expenses of such counsel shall
be paid, as soon as reasonably practicable after they are incurred, by the
Issuers (regardless of whether it is ultimately determined that an Indemnified
Holder is not entitled to indemnification hereunder). The Issuers shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for the Indemnified Holders, which firm shall be
designated by the Holders. The Issuers shall be liable for any settlement of any
such action or proceeding effected with the
17
Issuers' prior written consent, which consent shall not be withheld
unreasonably, and the Issuers agree to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written
consent of the Issuers. The Issuers shall not, without the prior written consent
of each Indemnified Holder, settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability
arising out of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Issuers, and their respective
directors, officers, and any person controlling (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Issuers, and the respective
officers, directors, partners, employees, representatives and agents of each
such person, to the same extent as the foregoing indemnity from the Issuers to
each of the indemnified Holders, but only with respect to claims and actions
based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against any of the Issuers or their directors or
officers or any such controlling person and in respect of which indemnity may be
sought against a Holder of Transfer Restricted Securities, such Holder shall
have the rights and duties given the Issuers, and the Issuers or their directors
or officers or such controlling person shall have the rights and duties given to
each Holder by the second paragraph of Section 8(a). In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Transfer
Restricted Securities giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers on the one hand and the Holders on the other hand from the sale by the
Company of the Securities or if such allocation is not permitted by applicable
law, the relative fault of the Issuers, on the one hand, and of the Indemnified
Holders, on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Issuers,
on the one hand, and of the Indemnified Holder, 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 Issuers or by the
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
18
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Issuers and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(c) were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, in no case
shall any Initial Purchaser or any Holder of any Security or New Security be
responsible, in the aggregate, for any amount in excess of the purchase discount
or commission applicable to such Security, or in the case of a New Security,
applicable to the Security that was exchangeable into such New Security, nor
shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by
such underwriter under the Registration Statement that resulted in such damages.
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 Holders' obligations to
contribute pursuant to this Section 8(c) are several in proportion to the
respective principal amount of Securities held by each of the Holders hereunder
and not joint.
SECTION 9. RULE 144A.
The Issuers hereby agree with each Holder, for so long as any Transfer
Restricted Securities remain outstanding as Transfer Restricted Securities, to
make available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
19
SECTION 11. SELECTION OF UNDERWRITERS.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS.
(a) Remedies. Each of the Issuers agrees that monetary damages
(including the Liquidated Damages contemplated hereby) would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Issuers will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Neither the Company
nor any of the Guarantors is subject to or bound by any agreement granting any
registration rights with respect to its securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Issuers' securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities or New Securities. Each of the
Issuers will not take any action, or permit any change to occur, with respect to
the Securities or New Securities that would materially and adversely affect the
ability of the Holders or holders of the Old Notes to Consummate any Exchange
Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given, unless the Issuers have obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose Securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose Securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(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), 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
20
Indenture, with a copy to the Registrar under the Indenture and to the
Initial Purchasers;
(ii) if to the Initial Purchasers, initially at the address of
the Initial Purchasers set forth in the Purchase Agreement; and
(iii) if to the Issuers, initially at the Company's address
set forth in the Purchase Agreement.
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.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; PROVIDED, HOWEVER, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and only to the extent such successor or assign
acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(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) Securities Held by the Issuers. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder. Securities or New Securities, as applicable,
held by the Issuers or their Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be
21
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(l) Entire Agreement. This Agreement (together with the Purchase
Agreement, the Indenture and the other documents referenced therein) 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 (or therein) with respect to the registration rights
granted by the Issuers with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
[The remainder of this page is intentionally blank.]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY:
SPEEDWAY MOTORSPORTS, INC.,
a Delaware corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
GUARANTORS:
ATLANTA MOTOR SPEEDWAY, INC.,
a Georgia corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
BRISTOL MOTOR SPEEDWAY, INC.,
a Tennessee corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
CHARLOTTE MOTOR SPEEDWAY, INC.,
a North Carolina corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
SPR ACQUISITION CORPORATION,
a California corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
23
TEXAS MOTOR SPEEDWAY, INC.,
a Texas corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
600 RACING, INC.,
a North Carolina corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
SPEEDWAY FUNDING CORP.,
a Delaware corporation
By: /s/Joan Dobrzynski
---------------------------------
Name: Joan Dobrzynski
Title: Vice President
SONOMA FUNDING CORPORATION,
a California corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
SPEEDWAY CONSULTING & DESIGN, INC.,
a North Carolina corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
THE SPEEDWAY CLUB, INC.,
a North Carolina corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
24
INEX CORP.,
a North Carolina corporation
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
LAS VEGAS MOTOR SPEEDWAY, LLC,
a Nevada limited liability company
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Manager
SMI SYSTEMS, LLC,
a Nevada limited liability company
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Manager
SPEEDWAY SYSTEMS LLC,
a North Carolina limited liability company
By: IMS Systems Limited Partnership, its sole
member
By: Speedway Motorsports, Inc., its general
partner
By: /s/William R. Brooks
---------------------------------
Name: William R. Brooks
Title: Vice President
25
INITIAL PURCHASERS:
NATIONSBANC MONTGOMERY SECURITIES LLC
By: /s/ Gary R. Wolfe
---------------------------------
Name: Gary R. Wolfe
Title: Managing Director
FIRST UNION CAPITAL MARKETS CORP.
By: /s/ Steve J. Taylor
---------------------------------
Name: Steve J. Taylor
Title:
J.C. BRADFORD & CO., L.L.C.
By: /s/ Bill Wall
---------------------------------
Name: Bill Wall
Title:
26