EXECUTION COPY
REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”)
is made and entered into April 3, 2007, between STEEL DYNAMICS, INC., an
Indiana corporation (the “Company”), the subsidiaries of the Company listed on
Schedule I hereto (the “Guarantors”) and BANC OF AMERICA SECURITIES LLC,
GOLDMAN, SACHS & CO., and MORGAN
STANLEY & CO. INCORPORATED (the “Initial Purchasers”).
This Agreement is made pursuant to the Purchase
Agreement dated March 28, 2007, among the Company and the Initial Purchasers
(the “Purchase Agreement”), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $500,000,000 principal amount of the
Company’s 6¾% Senior Notes Due 2015 (the “Securities”). The Securities will be fully and
unconditionally guaranteed on a senior unsecured basis by the Guarantors. In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company and the Guarantors agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
“1933 Act” shall mean the Securities Act of
1933, as amended from time to time.
“1934 Act”
shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Closing Date” shall mean the Closing
Date as defined in the Purchase Agreement.
“Company”
shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“Exchange Offer”
shall mean the exchange offer by the Company of Exchange Securities for
Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer
Registration” shall mean a registration under the 1933 Act effected
pursuant to Section 2(a) hereof.
“Exchange Offer
Registration Statement” shall mean an exchange offer registration statement
on Form S-4 (or, if applicable, on another appropriate form) and all
amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
“Exchange
Securities” shall mean securities issued by the Company and guaranteed by
the Guarantors under the Indenture containing terms identical to the Securities
(except that (i) interest thereon shall accrue from the last date on which
interest was paid on the Securities or, if no such interest was paid, April 3,
2007, (ii) the Exchange Securities will not contain restrictions on transfer,
and (iii) the Exchange Securities are not entitled to Additional Interest) and
to be offered to Holders of Securities in exchange for Securities pursuant to
the Exchange Offer.
“Free Writing
Prospectus” shall mean each free writing prospectus (as defined in Rule 405
under the 1933 Act) prepared by or on behalf of the Company or used by the
Company in connection with the Registrable Securities or the Exchange
Securities.
“Guarantors”
shall have the meaning set forth in the preamble and shall also include any
Guarantor’s successor.
“Holder”
shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term “Holder” shall include Participating Broker-Dealers (as
defined in Section 4(a)).
“Indenture”
shall mean the Indenture relating to the Securities dated as of April 3, 2007,
as amended, among the Company, the Guarantors and The Bank of New York Trust
Company, N.A., as trustee, and as the same may be amended from time to time in
accordance with the terms thereof.
“Initial
Purchasers” shall have the meaning set forth in the preamble.
“Issuer
Information” shall mean material information about the Company, the
Guarantors or any of their respective securities that has been provided by or
on behalf of the Company and/or the Guarantors.
“Majority
Holders” shall mean the Holders of a majority of the aggregate principal
amount of outstanding Registrable Securities; provided that whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any of its affiliates (as such term is defined in Rule 405 under the 1933 Act)
(other than the Initial Purchasers or subsequent Holders of Registrable
Securities if such subsequent holders are deemed to be such affiliates solely
by reason of their holding of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of
such required percentage or amount.
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“Person”
shall mean an individual, partnership, limited liability company, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof.
“Purchase
Agreement” shall have the meaning set forth in the preamble.
“Prospectus”
shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including a prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities covered
by a Shelf Registration Statement, and by all other amendments and supplements
to such prospectus, and in each case including all material incorporated by
reference therein.
“Registrable
Securities” shall mean the Securities and the guarantee thereof by the
Guarantors; provided, however, that the Securities and the
guarantee shall cease to be Registrable Securities (i) when such Securities are
exchanged for Exchange Securities, (ii) when a Registration Statement with
respect to such Securities and the guarantee shall have been declared effective
under the 1933 Act and such Securities and the guarantee shall have been
disposed of pursuant to such Registration Statement, (iii) when such Securities
and the guarantee have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the 1933 Act or (iv)
when such Securities and the guarantee shall have otherwise ceased to be
outstanding.
“Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance by the Company and the Guarantors with this Agreement, including
without limitation: (i) all SEC,
stock exchange or National Association of Securities Dealers, Inc. registration
and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection with
blue sky qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi) the fees
and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and the Guarantors and, in the case of
a Shelf Registration Statement, the fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchaser) and (viii) the fees and
disbursements of the independent public accountants of the Company and the
Guarantors, including the expenses of any special audits or “cold comfort”
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
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“Registration
Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
“SEC” shall
mean the Securities and Exchange Commission.
“Shelf
Registration” shall mean a registration effected pursuant to Section 2(b)
hereof.
“Shelf
Registration Statement” shall mean a “shelf” registration statement of the
Company and the Guarantors pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
“Trustee”
shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter”
shall have the meaning set forth in Section 3 hereof.
“Underwritten
Registration” or “Underwritten Offering” shall mean a registration
in which Registrable Securities are sold to an Underwriter for reoffering to
the public.
2. Registration Under the 1933 Act.
(a) To
the extent not prohibited by any applicable law or applicable interpretation of
the Staff of the SEC, the Company and the Guarantors shall use their reasonable
best efforts to cause to be filed an Exchange Offer Registration Statement
covering the offer by the Company and the Guarantors to the Holders to exchange
all of the Registrable Securities for Exchange Securities and to have such
Registration Statement remain effective until the closing of the Exchange Offer.
The Company and the Guarantors shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the SEC and use its reasonable best
efforts to have the Exchange Offer consummated not later than 60 days after
such effective date. The Company and the
Guarantors shall commence the Exchange Offer by mailing the related exchange
offer Prospectus and accompanying documents to each Holder, through DTC or
otherwise, stating in such Prospectus or accompanying documents, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being
made pursuant to this Registration Rights Agreement and that all Registrable
Securities validly tendered and not withdrawn will be accepted for exchange;
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(ii) the dates of acceptance for exchange
(which shall be a period of at least 20 business days from the date such notice
is mailed) (the “Exchange Dates”);
(iii) that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but will not
retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a
Registrable Security exchanged pursuant to the Exchange Offer will be required
to surrender such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that Holders will be entitled to
withdraw their election, not later than the close of business on the last
Exchange Date, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice a telegram,
facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing his election to have such Securities
exchanged.
As soon as practicable after the last Exchange Date,
the Company shall:
(i) accept for exchange Registrable
Securities or portions thereof tendered and not validly withdrawn pursuant to
the Exchange Offer; and
(ii) deliver, or cause to be delivered, to
the Trustee for cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the Trustee to
promptly authenticate and mail to each Holder, an Exchange Security equal in
principal amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company and the Guarantors shall use their
reasonable best efforts to complete the Exchange Offer as provided above and
shall comply with the applicable requirements of the 1933 Act, the 1934 Act and
other applicable laws and regulations in connection with the Exchange
Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the Staff of the SEC. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right, subject to applicable
law, to contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
If the Company and the Guarantors effect the Exchange
Offer, the Company and the Guarantors shall be entitled to close the Exchange
Offer twenty (20) business days after such commencement (provided that the
Company and the Guarantors have accepted all the Securities theretofore validly
tendered and not withdrawn in accordance with the terms of the Exchange Offer).
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Each Holder participating in the Exchange Offer shall
be required to represent to the Company and the Guarantors in writing that at
the time of the consummation of the Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any Person to
participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Securities and (iii) such Holder is not affiliate of either the
Company or any of the Guarantors within the meaning of Rule 405 under the 1933
Act, (iv) if such Holder is not a broker dealer, that it is not engaged in and
does not intend to engage in, the distribution of the Exchange Securities and
(v) if such Holder is a broker dealer, that it will receive Exchange Securities
for its own account in exchange for Securities that were acquired as a result
of market making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with
the resale of such Exchange Securities.
(b) In
the event that (i) the Company and the Guarantors determine that the
Exchange Offer Registration provided for in Section 2(a) above is not available
or may not be consummated as soon as practicable after the last Exchange Date
because it would violate applicable law or the applicable interpretations of
the Staff of the SEC, (ii) the Exchange Offer is not for any other reason
consummated by January 3, 2008 or (iii) the Exchange Offer has been completed
and in the opinion of counsel for the Initial Purchasers a Registration
Statement must be filed and a Prospectus must be delivered by the Initial
Purchasers in connection with any offering or sale of Registrable Securities,
the Company and the Guarantors shall use their reasonable best efforts to cause
to be filed as soon as practicable after such determination, date or notice of
such opinion of counsel is given to the Company, as the case may be, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities and to have such Shelf Registration Statement declared
effective by the SEC. In the event the
Company and the Guarantors are required to file a Shelf Registration Statement
solely as a result of the matters referred to in clause (iii) of the preceding
sentence, the Company and the Guarantors shall use their reasonable best
efforts to file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer. The Company and the Guarantors agree to use
their reasonable best efforts to keep the Shelf Registration Statement
continuously effective until the expiration of the period referred to in Rule
144(k) with respect to the Registrable Securities or such shorter period that
will terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Company and the
Guarantors further agree to supplement or amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company and the Guarantors for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use its reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter practicable. The Company and the Guarantors agree to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment promptly after its being used or filed with the SEC. To the extent that the Company and the
Guarantors are required to
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include any Registrable Securities in a Shelf Registration Statement,
the Company and the Guarantors may include such Registrable Securities on any
other shelf registration statement otherwise filed by the Company with respect
to any of its other securities.
(c) The
Company and the Guarantors shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a
Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed
to have become effective unless it has been declared effective by the SEC; provided,
however, that, if, after it has been declared effective, the offering of
Registrable Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of such interference
until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume. As
provided for in the Indenture, in the event the Exchange Offer is not
consummated and the Shelf Registration Statement is not declared effective on
or prior to January 3, 2008, the interest rate on the Securities will be
increased by .5% per annum until the Exchange Offer is consummated or the Shelf
Registration Statement is declared effective by the SEC.
(e) Without
limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company or the
Guarantors to comply with their obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company’s or the Guarantors’ obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company and
the Guarantors with respect to the Registration Statements pursuant to
Section 2(a) and Section 2(b) hereof, the Company and the Guarantors
shall as expeditiously as possible:
(a) prepare and file with the SEC a
Registration Statement on the appropriate form under the 1933 Act, which form
(x) shall be selected by the Company and the Guarantors and (y) shall, in
the case of a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and (z) shall comply as to form in
all material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and use
their reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
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(b) prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective for the applicable
period and cause each Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424 under
the 1933 Act; to keep each Prospectus current during the period described under
Section 4(3) and Rule 174 under the 1933 Act that is applicable to transactions
by brokers or dealers with respect to the Registrable Securities or Exchange
Securities;
(c) in the case of a Shelf Registration,
furnish to each Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for the Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or Underwriter
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and the Company and the Guarantors
consent to the use of such Prospectus and any amendment or supplement thereto
in accordance with applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the offering and sale
of the Registrable Securities covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with applicable
law;
(d) use its reasonable best efforts to
register or qualify the Registrable Securities under all applicable state
securities or “blue sky” laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement shall reasonably
request in writing by the time the applicable Registration Statement is
declared effective by the SEC, to cooperate with such Holders in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that neither the Company nor any
Guarantor shall be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration,
notify each Holder of Registrable Securities who has provided contact
information to the Company, counsel for the Holders and counsel for the Initial
Purchasers promptly and, if requested by any such Holder or counsel, confirm
such advice in writing (i) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if,
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between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company or any Guarantor
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and
correct in all material respects or if the Company or any Guarantor receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during the
period a Shelf Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading
and (vi) of any determination by the Company or any Guarantor that a
post-effective amendment to a Registration Statement would be appropriate;
(f) make every reasonable effort to
obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment and provide immediate
notice to each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration,
furnish to each Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration,
cooperate with the selling Holders of Registrable Securities to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and enable such
Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling
Holders may reasonably request at least one business day prior to the closing
of any sale of Registrable Securities;
(i) in the case of a Shelf Registration,
upon the occurrence of any event contemplated by Section 3(e)(v) hereof, use
its reasonable best efforts to prepare and file with the SEC a supplement or
post-effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The Company and the Guarantors agree to
notify the Holders to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and the Holders hereby agree to suspend
use of the Prospectus until the Company and the Guarantors have amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a
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Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) and make such of the
representatives of the Company and the Guarantors as shall be reasonably
requested by the Initial Purchasers or their counsel (and, in the case of a
Shelf Registration Statement, the Holders or their counsel) available for
discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of or
supplement to a Registration Statement or a Prospectus or any document which is
to be incorporated by reference into a Registration Statement or a Prospectus,
of which the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have previously
been advised and furnished a copy or to which the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the Holders or
their counsel) shall object;
(k) obtain a CUSIP number for all
Exchange Securities or Registrable Securities, as the case may be, not later
than the effective date of a Registration Statement;
(l) cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended (the “TIA”), in connection
with the registration of the Exchange Securities or Registrable Securities, as
the case may be, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute, and use its
reasonable best efforts to cause the Trustee to execute, all documents as may
be required to effect such changes and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration,
make available for inspection by a representative of the Holders of the
Registrable Securities, any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and attorneys and accountants designated
by the Holders, at reasonable times and in a reasonable manner, all financial
and other records, pertinent documents and properties of the Company and the
Guarantors, and cause the respective officers, directors and employees of the
Company and the Guarantors to supply all information reasonably requested by
any such representative, Underwriter, attorney or accountant in connection with
a Shelf Registration Statement;
(n) in the case of a Shelf Registration,
use its reasonable best efforts to cause all Registrable Securities to be
listed on any securities exchange or any automated quotation system on which
similar securities issued by the Company or any Guarantor are then listed if
requested by the Majority Holders, to the extent such Registrable Securities
satisfy applicable listing requirements;
(o) use its best efforts to cause the
Registrable Securities or the Exchange Securities, as the case may be, to
continue to be rated by two nationally recognized
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statistical rating organizations (as such
term is defined in Rule 436(g)(2) under the 1933 Act);
(p) if reasonably requested by any Holder
of Registrable Securities covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably requests to
be included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such filing; and
(q) in the case of a Shelf Registration,
enter into such customary agreements and take all such other actions in
connection therewith (including those requested by the Holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (i) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Company and the Guarantors (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in connection with underwritten firm
commitment offerings, (iii) obtain “cold comfort” letters from the
independent certified public accountants of the Company and the Guarantors
(and, if necessary, any other certified public accountant of any subsidiary of
the Company or any Guarantor, or of any business acquired by the Company or any
Guarantor for which financial statements and financial data are or are required
to be included in the Registration Statement) addressed to each selling Holder
and Underwriter of Registrable Securities, such letters to be in customary form
and covering matters of the type customarily covered in “cold comfort” letters
in connection with underwritten firm commitment offerings, and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders
of a majority in principal amount of the Registrable Securities being sold or
the Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Company and the Guarantors made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the
Company and the Guarantors may require each Holder of Registrable Securities to
furnish to the Company and the Guarantors such information regarding the Holder
and the proposed distribution by such Holder of such Registrable Securities as
the Company and the Guarantors may from time to time reasonably request in
writing.
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In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company and the
Guarantors of the happening of any event of the kind described in Section
3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, and, if so directed by the Company and the Guarantors,
such Holder will deliver to the Company and the Guarantors (at its expense) all
copies in its possession, other than permanent file copies then in such Holder’s
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. If
the Company and the Guarantors shall give any such notice to suspend the
disposition of Registrable Securities pursuant to a Registration Statement, the
Company and the Guarantors shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company and the
Guarantors may give any such notice only twice during any 365-day period and
any such suspensions may not exceed 30 days for each suspension and there may
not be more than two suspensions in effect during any 365-day period.
The Holders of Registrable Securities covered by a
Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers (the “Underwriters”) that will administer the
offering will be selected by the Majority Holders of the Registrable Securities
included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The
Staff of the SEC has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Exchange Offer in exchange for
Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a “Participating Broker-Dealer”),
may be deemed to be an “underwriter” within the meaning of the 1933 Act and
must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is
the Staff’s position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement
to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Securities, without naming the Participating Broker-Dealers
or specifying the amount of Exchange Securities owned by them, such Prospectus
may be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise meets
the requirements of the 1933 Act.
(b) In
light of the above, notwithstanding the other provisions of this Agreement, the
Company and the Guarantors agree that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Initial
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Purchasers or by one or more Participating Broker-Dealers, in each case
as provided in clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above; provided
that:
(i) the Company and the Guarantors shall
not be required to amend or supplement the Prospectus contained in the Exchange
Offer Registration Statement, as would otherwise be contemplated by Section
3(i), (A) after the Participating Broker-Dealers shall have disposed of the
Registrable Securities or (B) for a period exceeding 180 days after the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement) and Participating Broker-Dealers
shall not be authorized by the Company and the Guarantors to deliver and shall
not deliver such Prospectus after such period in connection with the resales
contemplated by this Section 4; and
(ii) the application of the Shelf
Registration procedures set forth in Section 3 of this Agreement to an Exchange
Offer Registration, to the extent not required by the positions of the Staff of
the SEC or the 1933 Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to the Company and the Guarantors by the
Initial Purchasers or with the reasonable request in writing to the Company and
the Guarantors by one or more broker-dealers who certify to the Initial
Purchasers and the Company and the Guarantors in writing that they anticipate
that they will be Participating Broker-Dealers; and provided further
that, in connection with such application of the Shelf Registration procedures
set forth in Section 3 to an Exchange Offer Registration, the Company and the
Guarantors shall be obligated (x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be Banc of America Securities LLC
unless it elects not to act as such representative, (y) to pay the fees and
expenses of only one counsel representing the Participating Broker-Dealers,
which shall be counsel to the Initial Purchasers unless such counsel elects not
to so act and (z) to cause to be delivered only one, if any, “cold comfort”
letter with respect to the Prospectus in the form existing on the last Exchange
Date and with respect to each subsequent amendment or supplement, if any,
effected during the period specified in clause (i) above.
(c) The
Initial Purchasers shall have no liability to the Company, any Guarantor or any
Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution.
(a) Each
of the Company and the Guarantors agrees, jointly and severally, to indemnify
and hold harmless the Initial Purchasers, each Holder and each Person, if any,
who controls any Initial Purchaser or any Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common
control with, or is controlled by, any Initial Purchaser or any Holder, from
and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by the Initial
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Purchaser, any Holder or any such controlling or affiliated Person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the 1933
Act, including all documents incorporated therein by reference, or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
or caused by any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (as amended or supplemented if the Company and
the Guarantors shall have furnished any amendments or supplements thereto), any
Free Writing Prospectus or any Issuer Information filed or required to be filed
pursuant to Rule 433(d) under the 1933 Act, or caused by any omission or
alleged omission to state therein a material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to the Initial Purchasers or any
Holder furnished to the Company or the Guarantors in writing through Banc of
America Securities LLC or any selling Holder expressly for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company and each of the Guarantors will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of the 1933 Act and the 1934 Act) to the same extent as provided above
with respect to the indemnification of the Holders, if requested in connection
with any Registration Statement.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers and the other selling Holders,
and each of their respective directors, officers who sign the Registration
Statement and each Person, if any, who controls the Company, the Guarantors,
any Initial Purchaser and any other selling Holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as
the foregoing indemnity from the Company and the Guarantors to the Initial
Purchasers and the Holders, but only with reference to information relating to
such Holder furnished to the Company and the Guarantors in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto), any Prospectus (or any amendment or supplement thereto) or any Free
Writing Prospectus.
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any Person in respect of which indemnity may be sought
pursuant to either paragraph (a) or paragraph (b) above, such Person (the “indemnified
party”) shall promptly notify the Person against whom such indemnity may be
sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the
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indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
(a) the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Initial Purchasers and all Persons, if any, who
control any Initial Purchaser within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, (b) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company and
the Guarantors, their directors, their officers who sign the Registration
Statement and each Person, if any, who controls the Company or the Guarantors
within the meaning of either such Section and (c) the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Holders and
all Persons, if any, who control any Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the
Initial Purchasers and Persons who control the Initial Purchasers, such firm
shall be designated in writing by the Initial Purchasers. In such case involving the Holders and such
Persons who control Holders, such firm shall be designated in writing by the
Majority Holders. In all other cases,
such firm shall be designated by the Company.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party for
such fees and expenses of counsel in accordance with such request prior to the
date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If
the indemnification provided for in paragraph (a) or paragraph (b) of this
Section 5 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of
the Company, the Guarantors and the Holders 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 the Guarantors or by the
Holders and the
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parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders’ respective obligations to
contribute pursuant to this Section 5(d) are several in proportion to the
respective principal amount of Registrable Securities of such Holder that were
registered pursuant to a Registration Statement.
(e) The
Company, the Guarantors and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any 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 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Securities were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The
remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in
this Section 5 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Initial Purchasers, any Holder or any Person controlling any
Initial Purchaser or any Holder, or by or on behalf of the Company, the
Guarantors, their officers or directors or any Person controlling the Company
or the Guarantors, (iii) acceptance of any of the Exchange Securities and
(iv) any sale of Registrable Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
(a) No
Inconsistent Agreements. Neither the
Company nor the Guarantors have entered into, and on or after the date of this
Agreement will not enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company’s or the Guarantors’ other issued and outstanding securities under any
such agreements.
(b) Amendments
and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Guarantors have
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided, however,
that no amendment,
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modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company or the Guarantors, initially at the Company’s address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c).
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 is
acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee, at the address specified in the Indenture.
(d) Successors
and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation and without
the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the Purchase
Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.
(e) Purchases
and Sales of Securities. The Company
and the Guarantors shall not, and shall use their best efforts to cause their
affiliates (as defined in Rule 405 under the 1933 Act) not to, purchase and
then resell or otherwise transfer any Securities.
(f) Third
Party Beneficiary. The Holders shall
be third party beneficiaries to the agreements made hereunder between the
Company and the Guarantors, on the one hand, and the Initial Purchasers, on the
other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights
or the rights of Holders hereunder.
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(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 the laws of the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
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