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EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
by and among
VIDEOTRON LTEE
and
THE GUARANTORS LISTED ON SCHEDULE A HERETO
and
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
RBC CAPITAL MARKETS CORPORATION
HARRIS NESBITT CORP.
SCOTIA CAPITAL (USA) INC.
TD SECURITIES (USA) LLC
CIBC WORLD MARKETS CORP.
CREDIT SUISSE FIRST BOSTON LLC
NBF SECURITIES (USA) CORP.
HSBC SECURITIES (USA) INC.
DATED AS OF NOVEMBER 19, 2004
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of November 19, 2004, by and among Videotron Ltee, a company
incorporated under the laws of the Province of Quebec (the "Company"), the
guarantors listed on Schedule A hereto (the "Guarantors") and Banc of America
Securities LLC, Citigroup Global Markets Inc., RBC Dominion Securities
Corporation, Harris Nesbitt Corp., Scotia Capital (USA) Inc., TD Securities
(USA) LLC, CIBC World Markets Corp., Credit Suisse First Boston LLC, NBF
Securities (USA) Corp. and HSBC Securities (USA) Inc. (each an "Initial
Purchaser" and, collectively, the "Initial Purchasers"). Each of the Initial
Purchasers has agreed to purchase the Company's Initial Notes (as defined below)
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement (as defined
below). In order to induce the Initial Purchasers to purchase the Initial Notes,
the Company and the Guarantors have agreed, for the benefit of each Initial
Purchaser and for the benefit of the holders from time to time of the Notes
(including each Initial Purchaser) to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchasers set forth in Section 5(h) of the
Purchase Agreement, and capitalized terms not defined herein are used as defined
in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following capitalized
terms shall have the following meanings:
ADVICE: As defined in Section 6(c) hereof.
BROKER-DEALER: Any broker or dealer registered as such under the Exchange
Act.
BUSINESS DAY: Any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
CLOSING DATE: The date of this Agreement.
COMMISSION: The United States Securities and Exchange Commission.
CONSUMMATE: A registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement when (i) the Exchange Offer Registration Statement
has been filed and declared effective by the Commission, (ii) such Registration
Statement was kept continuously effective and the Exchange Offer was kept open
for a period not less than the minimum period required pursuant to Section 3(b)
hereof and (iii) the Company has delivered to the Registrar under the Indenture
Exchange Notes in the same aggregate principal amount as the aggregate principal
amount of Initial Notes that were tendered by Holders thereof pursuant to the
Exchange Offer.
CONTROLLING PERSON: As defined in Section 8(a) hereof.
EFFECTIVENESS TARGET DATE: As defined in Section 5 hereof.
EXCHANGE ACT: The United States Securities Exchange Act of 1934, as
amended.
EXCHANGE NOTES: The 6 7/8% Senior Notes due January 15, 2014, of the same
series under the Indenture as the Initial Notes, including the Guarantees
attached thereto, to be issued to Holders in exchange for Transfer Restricted
Securities pursuant to this Agreement.
EXCHANGE OFFER: The registration under the Securities Act of the Exchange
Notes pursuant to a Registration Statement pursuant to which the Holders of all
outstanding Transfer Restricted Securities are offered the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
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HOLDER: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated as of October 8, 2003, as supplemented by
the First Supplemental Indenture, dated as of July 12, 2004, among the Company,
the Guarantors and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
INITIAL NOTES: The 6 7/8% Senior Notes due January 15, 2014, of the same
series under the Indenture as the Exchange Notes, including the Guarantees
attached thereto, for so long as such securities constitute Transfer Restricted
Securities.
INITIAL PLACEMENT: The issuance and sale by the Company of the Initial
Notes to the Initial Purchasers pursuant to the Purchase Agreement.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Initial Notes and the Exchange Notes.
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: The Purchase Agreement, dated as of November 15, 2004,
among the Company, the Guarantors and the Initial Purchasers.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and the
Guarantors relating to (a) an offering of Exchange Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
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 ACT: The United States Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4(a) hereof.
SPECIAL INTEREST: As defined in Section 5 hereof.
TRANSFER RESTRICTED SECURITIES: Each Initial Note, until the earliest to
occur of (a) the date on which such Initial Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Securities Act,
(b) the date on which such Initial Note has been effectively registered under
the Securities Act and disposed of in accordance with a Shelf Registration
Statement and (c) the date on which such Initial Note is distributed to the
public pursuant to Rule 144 under the Securities Act or by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein).
TRUST INDENTURE ACT: The United States Trust Indenture Act of 1939 (15
U.S.C. Section 77aaa, et seq.) as in effect on the date of the Indenture.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the benefits
of this Agreement are the Transfer Restricted Securities.
(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 Company and the Guarantors shall (i) cause to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 45 days after the Closing Date (or if such 45th day is not a
Business Day, the next succeeding Business Day), a Registration Statement under
the Securities Act relating to the Exchange Notes and the Exchange Offer,
(ii) use their best efforts to cause such Registration Statement to become
effective at the earliest possible time, but in no event later than 120 days
after the Closing Date (or if such 120th day is not a Business Day, the next
succeeding Business Day), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange Offer
Registration Statement shall be on the appropriate form permitting registration
of (i) the offers of the Exchange Notes in exchange for the Transfer Restricted
Securities and (ii) the resales of Exchange Notes held by Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors 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 30 days after
the date notice of the Exchange Offer is mailed to the Holders. The Company and
the Guarantors shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement. The Company and
the Guarantors shall use their 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
180 days after the Closing Date (or if such 180th day is not a Business Day, the
next succeeding Business Day).
(c) The Company and the Guarantors shall indicate in a "Plan of
Distribution" section contained in the Prospectus forming a part of the Exchange
Offer Registration Statement that any Broker-Dealer who holds Initial Notes 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 Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Notes 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 Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.
The Company and the Guarantors 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 Exchange Notes 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 Securities Act and the policies, rules and
regulations of the
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Commission as announced from time to time, for a period ending on the earlier of
(i) 180 days from the date on which the Exchange Offer Registration Statement is
declared effective and (ii) the date on which a Broker-Dealer is no longer
required to deliver a prospectus in connection with market-making or other
trading activities.
The Company and the Guarantors shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 180-day (or shorter as provided in the foregoing sentence) period in
order to facilitate such resales.
SECTION 4. SHELF REGISTRATION.
(a) SHELF REGISTRATION. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or 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), (ii) for any reason the Exchange Offer is not Consummated
within 180 days after the Closing Date (or if such 180th day is not a Business
Day, the next succeeding Business Day), or (iii) with respect to any Holder of
Transfer Restricted Securities, such Holder notifies the Company prior to
20th day following the Consummation of the Exchange Offer that (A) such Holder
is prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange Notes 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 such Holder, or (C) such Holder is
a Broker-Dealer and holds Initial Notes acquired directly from the Company or
one of its affiliates, then, upon such Holder's request, the Company and the
Guarantors shall:
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement") as soon as practicable but in any event on or prior to 45 days
after the date on which the filing obligation arises (or if such 45th day is
not a Business Day, the next succeeding Business Day) (such 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 120th day after
date on which the filing obligation arises (or if such 120th day is not a
Business Day, the next succeeding Business Day).
The Company and the Guarantors 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 (c) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the
Closing Date (or shorter period that will terminate when all the Notes covered
by such Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement).
(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. 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. SPECIAL INTEREST. 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
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Consummated within 30 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 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, unless a Shelf Registration Statement or its related Prospectus
ceases to be effective or usable solely as a result of the occurrence of a
material event with respect to the Company and/or the Guarantors that would be
required by law to be described in such Shelf Registration Statement or the
related Prospectus, PROVIDED that the Company is proceeding promptly and in good
faith to amend or supplement such Shelf Registration Statement or the related
Prospectus to describe such event, (each such event referred to in clauses (i)
through (iv), a "Registration Default"), the Company and the Guarantors hereby
agree that the interest rate borne by the Transfer Restricted Securities shall
be increased by 0.25% per annum during the 90-day period immediately following
the occurrence of any Registration Default and shall increase by an additional
0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such increase exceed 1.00% per annum. Such additional interest to be paid
pursuant to a Registration Default is referred to herein as "Special Interest."
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the interest rate borne by the relevant Transfer
Restricted Securities will be reduced to the original interest rate borne by
such Transfer Restricted Securities; provided, however, that, if after any such
reduction in interest rate, a different Registration Default occurs, the
interest rate borne by the relevant Transfer Restricted Securities shall again
be increased pursuant to the foregoing provisions.
All Special Interest accrued pursuant to this Section 5 shall be paid to the
Holders entitled thereto, in the manner provided for the payment of interest in
the Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes.
All obligations of the Company and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Note shall
have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES.
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the Exchange
Offer, the Company and the Guarantors shall 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 Transfer Restricted Securities being sold 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 Company and the Guarantors hereby agree to diligently pursue a favorable
decision from the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Initial Notes.
(ii) As a condition to its participation in the Exchange Offer pursuant
to the terms of this Agreement, each Holder of Transfer Restricted
Securities 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
Company, (B) it is not engaged in, and does not intend to engage in, and has
no arrangement or understanding with any person to participate in, a
distribution of the Exchange Notes to be issued in the Exchange Offer and
(C) it is acquiring the Exchange Notes in its ordinary course of business.
In addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of the
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 (which may
include any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus delivery
requirements of the
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Securities 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 Exchange Notes obtained by such Holder in exchange for Initial Notes
acquired by such Holder directly from the Company.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf Registration
Statement, the Company and the Guarantors 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 Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company and the Guarantors will, in accordance with the
time limitations set forth in Section 4 of this Agreement, prepare and file with
the Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(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 Notes by
Broker-Dealers), the Company and the Guarantors shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Securities 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 (A) any such Registration Statement to contain an
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) the Prospectus contained in the Registration Statement to
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (C) any such Registration Statement or the Prospectus
contained therein not to be effective or usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A), (B)
or (C), use their 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 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 Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the
Securities 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 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 Securities 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
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the making of any additions to or changes in (1) the Registration Statement
in order to correct an omission of a material fact necessary to make the
statements therein not misleading, or (2) the Prospectus in order to correct
an omission of a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company and the
Guarantors shall use their reasonable best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each
selling Holder named in any 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 and underwriter(s) in connection with such sale, if any, for a
period of at least five business days, and the Company and any Guarantors
will not file any such Registration Statement or Prospectus or any amendment
or supplement to any such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which an Initial Purchaser
of Transfer Restricted Securities covered by such Registration Statement or
the underwriter(s), if any, shall reasonably object in writing within five
business days after the receipt thereof (such objection to be deemed timely
made upon confirmation of telecopy transmission within such period);
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the Initial Purchasers, each selling
Holder named in any Registration Statement, and to the underwriter(s), if
any, make the representatives of the Company and the Guarantors 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 or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the Initial
Purchasers, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such Initial Purchasers or any of the underwriter(s), all
financial and other records, pertinent corporate documents and properties of
the Company and the Guarantors as is customary for similar due diligence
examinations and cause the Company's and the Guarantors' officers, directors
and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness; PROVIDED that all information and documents supplied by the
Company shall be kept confidential by the receiving parties unless
disclosure is required by law or regulation, or by any regulatory authority,
stock exchange, court or administrative order;
(vii) if requested by any selling Holders 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 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 Company is notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the underwriter(s), if
any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto,
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including financial statements and schedules, all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein
by reference);
(x) deliver to each selling Holder 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 Company and the Guarantors hereby
consent, subject to the provisions of this Agreement, to the use of the
Prospectus and any amendment or supplement thereto by each of the selling
Holders 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 in form, substance and scope as
are customarily made by issuers to underwriters, 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 Company
and the Guarantors shall, with respect to any Shelf Registration Statement:
(A) furnish to each Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may request and
as are customarily made by issuers to underwriters in primary
underwritten offerings, upon 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
each of the Company and the Guarantors, confirming, as of the date
thereof, the matters set forth in paragraphs (i), (ii) and (iii) of
Section 5(e) 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 Company and the
Guarantors, covering the matters set forth in paragraph (c) of
Section 5 of the Purchase Agreement and such other matters as such
parties may reasonably request, and in any event including a
statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company
and the Guarantors, representatives of the independent public
accountants for the Company and the Guarantors, 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, although such
counsel has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers and other
representatives of the Company and the Guarantors and without
independent check or verification), no facts came to such counsel's
attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective, and, in the
case of the Exchange Offer Registration Statement, as of the date of
Consummation, 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. Without
limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
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financial statements, notes and schedules and other financial data
included in any Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated 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
Company's independent accountants, in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with primary underwritten offerings, and
affirming the matters set forth in the comfort letters delivered
pursuant to Section 5(a) 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 entered into by the Company or
the Guarantors pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company and the
Guarantors contemplated in clause (A)(1) above cease to be true and correct, the
Company or the Guarantors shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder 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, 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 in the United States as the selling Holders or
underwriter(s) may request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Registration Statement; PROVIDED,
HOWEVER, that neither the Company nor any Guarantor shall be required to
register or qualify as a foreign corporation where it is not then 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
then so subject;
(xiii) shall issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, or if the Exchange Offer is to
be consummated, Exchange Notes, having an aggregate principal amount equal
to the aggregate principal amount of Initial Notes surrendered to the
Company by such Holder in exchange therefor or being sold by such Holder;
such Exchange Notes to be registered in the name of such Holder or in the
name of the purchaser(s) of such Notes, as the case may be; in return, the
Initial Notes 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) if any fact or event contemplated by clause (c)(iii)(D) above shall
exist or 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, in light of the circumstances under which they were
made, not misleading;
(xvi) 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;
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(xvii) 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 their reasonable best efforts to cause such Registration
Statement to be 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;
(xviii) otherwise use their best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders a consolidated earnings statement of the Company meeting
the requirements of Rule 158 (which need not be audited) for the
twelve-month period, no later than 45 days, or 90 days in the case that such
period is a fiscal year, (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;
(xix) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by the
Holders of a majority in aggregate principal amount of Initial Notes or the
managing underwriter(s), if any; and
(xx) 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 to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) 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
Company's 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 the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof or
shall have received the Advice; however, no such extension shall be taken into
account in determining whether Special Interest is due pursuant to Section 5
hereof or the amount of such Special Interest, it being agreed that the
Company's option to suspend use of a Registration Statement pursuant to this
paragraph shall be treated as a Registration Default for purposes of Section 5.
SECTION 7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's or the Guarantors' performance of
or compliance with this Agreement will be borne by the Company or the
Guarantors, 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 Exchange Notes 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, the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the Exchange
Notes on a national securities exchange or automated quotation system pursuant
to the requirements thereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
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The Company and the Guarantors will, in any event, 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 the Company or the Guarantors.
(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 Company and the Guarantors, jointly and
severally, 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 Shearman & Sterling LLP or such other counsel as
may be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION.
(a) The Company agrees and the Guarantors, 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 Securities 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 incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing, settling, compromising, paying 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), joint or several, directly or
indirectly caused by, related to, based upon, arising out of or in connection
with (A) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (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 or (B) any untrue statement or alleged untrue statement of a material
fact contained in any 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, in light of the
circumstances under which they were made, not misleading, except (i)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 and (ii) the Company and the Guarantors shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of or
is based upon the use of a Registration Statement after (x) a stop order has
been issued by the Commission in respect of a Registration Statement or any
proceedings for such purposes have been initiated or (y) a Registration
Statement has been suspended, so long as in the case of (x) and (y), the Holders
shall have received prior notice of such action from the Company in accordance
with this Agreement. This indemnity agreement shall be in addition to any
liability which the Company and the Guarantors may otherwise 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
Company or the Guarantors, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Company and the
Guarantors in writing (PROVIDED, that the failure to give such notice shall not
relieve the Company or the Guarantors of their respective obligations pursuant
to this Agreement). 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 incurred, by the Company and the Guarantors (regardless of whether
it is ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). The Company and the Guarantors 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 such Indemnified Holders, which firm shall be
designated by the Holders. The Company and the Guarantors shall be liable for
any settlement of any such action
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or proceeding effected with the Company's and each Guarantor's prior written
consent, which consent shall not be withheld unreasonably, and each of the
Company and the Guarantors agrees 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
Company. The Company and the Guarantors 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 Company and the Guarantors and their
respective directors, officers of the Company who sign a Registration Statement,
and any person controlling (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) the Company, the Guarantors and the
respective officers, directors, partners, employees, representatives and agents
of each such person, to the same extent as the foregoing indemnity from the
Company and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information furnished in writing by such
Holder expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company, the Guarantors or their
directors or officers or any such controlling person 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 Company and/or the Guarantors
and the Company, the Guarantors or their directors or officers or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph.
(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, judgments, actions 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 Company and the Guarantors, on the one hand, and the Holders, on
the other hand, from the Initial Placement (which in the case of the Company and
the Guarantors shall be deemed to be equal to the total gross proceeds from the
Initial Placement as set forth on the cover page of the Offering Memorandum),
the amount of Special Interest which did not become payable as a result of the
filing of the Registration Statement resulting in such losses, claims, damages,
liabilities, judgments actions or expenses, and such Registration Statement, or
if such allocation is not permitted by applicable law, the relative fault of the
Company and the Guarantors on the one hand, and of the Indemnified Holder, 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 Company on the one
hand and of the Indemnified Holder 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 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 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 Company, the Guarantors 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, none of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total discount received by such Holder with respect
to the Initial Notes exceeds the amount of any
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damages which 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. The Holders' obligations to
contribute pursuant to this Section 8(c) are several in proportion to the
respective principal amount of Initial Notes held by each of the Holders
hereunder and not joint.
SECTION 9. RULE 144A. The Company and the Guarantors each hereby agrees with
each Holder, for so long as any Transfer Restricted Securities remain
outstanding, 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 Securities 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.
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. The Company and the Guarantors each hereby agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not, and will cause the
Guarantors not to, 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 Guarantor has entered into 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
Company's securities under any agreement in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company and the Guarantors will
not take any action, or permit any change to occur, with respect to the Notes
that would materially and adversely affect the ability of the Holders 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 Company has 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; provided that, with
respect to any matter that directly or indirectly adversely affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser with respect to which such amendment,
qualification, supplement, waiver, consent or departure is to be effective.
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(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), facsimile, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture unless a more current address has been
provided to the Company by such Holder, with a copy to the Registrar under
the Indenture;
(ii) if to the Company and the Guarantors:
Videotron Ltee
300 Viger Avenue East
Montreal, Quebec H2X 3W4
Canada
Facsimile: (514) 985-8834
Attention: Frederic Despars
With a copy to:
Arnold & Porter LLP
399 Park Avenue
New York, New York 10022-4690
Facsimile: (212) 715-1399
Attention: Christine D. Rogers, Esq.
(iii) if to the Initial Purchasers:
Banc of America Securities LLC
9 West 57th Street, 6th
Floor New York, NY 10019
Facsimile: (212) 847-6441
Attention: High Yield Capital Markets
With a copy to:
Shearman & Sterling LLP
199 Bay Street, Commerce Court West
Suite 4405, P.O. Box 247
Toronto, Ontario M5L 1E8
Facsimile: (416) 360-2958
Attention: Christopher J. Cummings, Esq.
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 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 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.
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(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) CONSENT TO JURISDICTION. The Company and each Guarantor agree that any
legal suit, action or proceeding, arising out of or based upon this Agreement or
the transactions contemplated hereby ("Related Proceedings") may be instituted
in the federal courts of the United States of America located in the City and
County of New York or the courts of the State of New York in each case located
in the City and County of New York (collectively, the "Specified Courts"), and
each party irrevocably submits to the non-exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court (a "Related Judgment"), as to which such jurisdiction is non-exclusive) of
such courts in any such suit, action or proceeding. The Company and each
Guarantor irrevocably appoints CT Corporation System, as its agent to receive
service of process or other legal summons for the purposes of any such suit,
action or proceeding that may be instituted in any state or federal court in the
City and County of New York. Service of any process, summons, notice or document
upon such agent, and written notice of said service by mail to such party's
address set forth above shall be effective service of process for any suit,
action or other proceeding brought in any such court. The parties irrevocably
and unconditionally waive, to the fullest extent permitted by applicable law,
any objection to the laying of venue of any suit, action or other proceeding in
the Specified Courts and irrevocably and unconditionally waive and agree, to the
fullest extent permitted by applicable law, not to plead or claim in any such
court that any such suit, action or other proceeding brought in any such court
has been brought in an inconvenient forum.
(k) WAIVER OF IMMUNITY. With respect to any Related Proceeding, each party
irrevocably waives, to the fullest extent permitted by applicable law, all
immunity (whether on the basis of sovereignty or otherwise) from jurisdiction,
service of process, attachment (both before and after judgment) and execution to
which it might otherwise be entitled in the Specified Courts, and with respect
to any Related Judgment, each party waives any such immunity in the Specified
Courts or any other court of competent jurisdiction, and will not raise or claim
or cause to be pleaded any such immunity at or in respect of any such Related
Proceeding or Related Judgment, including, without limitation, any immunity
pursuant to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
(l) JUDGMENT CURRENCY. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than U.S. dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange to be used shall be the rate at
which in accordance with normal banking procedures the indemnified party could
purchase U.S. dollars with such other currency in The City of New York on the
business day preceding that on which final judgment is given. The obligations of
the Company and each Guarantor in respect of any sum due from it to any
indemnified party shall, notwithstanding any judgment in any currency other than
U.S. dollars, not be discharged until the first business day, following receipt
by such indemnified party of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such indemnified party may in
accordance with normal banking procedures purchase U.S. dollars with such other
currency; if the U.S. dollars so purchased are less than the sum originally due
to such indemnified party hereunder, the Company and each Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
indemnified party against such loss. If the U.S. dollars so purchased are
greater than the sum originally due to such indemnified party hereunder, such
indemnified party agrees to pay the Company and each Guarantor (but without
duplication) an amount equal to the excess of the dollars so purchased over the
sum originally due to such indemnified party hereunder.
(m) 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.
(n) ENTIRE AGREEMENT. This Agreement together with the Purchase Agreement,
the Notes and the Indenture is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
16
<Page>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
<Table>
VIDEOTRON LTEE
By: /s/ JACQUES MALLETTE
----------------------------------------------
Name: Jacques Mallette
Title: Executive Vice President and Chief
Financial Officer
GROUPE DE DIVERTISSEMENT SUPERCLUB INC.
By: /s/ JACQUES MALLETTE
----------------------------------------------
Name: Jacques Mallette
Title: Director
LE SUPERCLUB VIDEOTRON LTEE
By: /s/ JACQUES MALLETTE
----------------------------------------------
Name: Jacques Mallette
Title: Director
VIDEOTRON (1998) LTEE
By: /s/ JACQUES MALLETTE
----------------------------------------------
Name: Jacques Mallette
Title: Executive Vice President and Chief
Financial Officer
VIDEOTRON TVN INC.
By: /s/ JACQUES MALLETTE
----------------------------------------------
Name: Jacques Mallette
Title: Executive Vice President and Chief
Financial Officer
SUPERCLUB VIDEOTRON CANADA INC.
By: /s/ JACQUES MALLETTE
----------------------------------------------
Name: Jacques Mallette
Title: Director
LES PROPRIETES SUPERCLUB INC.
By: /s/ JACQUES MALLETTE
----------------------------------------------
Name: Jacques Mallette
Title: Director
</Table>
17
<Page>
The foregoing Registration Rights Agreement is hereby confirmed and accepted
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
RBC CAPITAL MARKETS CORPORATION
HARRIS NESBITT CORP.
SCOTIA CAPITAL (USA) INC.
TD SECURITIES (USA) LLC
CIBC WORLD MARKETS CORP.
CREDIT SUISSE FIRST BOSTON LLC
NBF SECURITIES (USA) CORP.
HSBC SECURITIES (USA) INC.
By: Banc of America Securities LLC
<Table>
By: /s/ DAN KELLY
------------------------------------------
Managing Director
For itself and the several Initial Purchasers
</Table>
18
<Page>
SCHEDULE A
LIST OF GUARANTORS
Groupe de divertissement SuperClub inc.
Le Superclub Videotron ltee
Videotron (1998) ltee
Videotron TVN Inc.
Super Club Videotron Canada inc.
Les Proprietes Super Club inc.
19