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EXHIBIT 4.23
TRANSAMERICAN REFINING CORPORATION
$175,000,000 16% Senior Subordinated Notes due 2003
REGISTRATION RIGHTS AGREEMENT
December 30, 1997
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
TransAmerican Refining Corporation, a Texas corporation (the
"Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. (the
"Purchaser"), upon the terms set forth in the Purchase Agreement (as defined
below), $175,000,000 aggregate principal amount of its 16% Senior Subordinated
Notes due 2003, Series A (the "Notes"). As an inducement to the Purchaser to
enter into the Purchase Agreement, the Company agrees with the Purchaser, for
the benefit of the holders of the Securities (as defined below) (including,
without limitation, the Purchaser), as follows:
1. Definitions. Capitalized terms used but not defined herein have the
respective meanings given to such terms in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
"Advice" has the meaning given to such term in Section 6.
"Agreement" means this Registration Rights Agreement.
"Applicable Period" has the meaning given to such term in Section 2(f).
"Business Day" means any day other than (i) Saturday or Sunday, or (ii)
a day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to be closed.
"Closing Date" means December 30, 1997.
"Company" has the meaning given to such term in the introductory
paragraph hereof.
"Effectiveness Date" means the 210th day following the Closing Date.
"Effectiveness Period" has the meaning given to such term in Section
3(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
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"Exchange Offer" has the meaning given to such term in Section 2(a).
"Exchange Offer Registration Statement" has the meaning given to such
term in Section 2(a).
"Exchange Securities" means 16% Senior Subordinated Notes due 2003,
Series B, of the Company, identical in all respects to the Notes, except for
references to series and restrictive legends.
"Filing Date" means the 150th day following the Closing Date.
"Holder" means each holder of Registrable Securities.
"Indemnified Party" has the meaning given to such term in Section 8(c).
"Indemnifying Party" has the meaning given to such term in Section
8(c).
"Indenture" means the Indenture dated the date hereof between the
Company and First Union National Bank, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time, in accordance
with the terms thereof.
"Initial Shelf Registration" has the meaning given to such term in
Section 3(a).
"Losses" has the meaning given to such term in Section 8(a).
"NASD" means the National Association of Securities Dealers, Inc.
"Notes" has the meaning given to such term in the introductory
paragraph hereof.
"Participating Broker-Dealer" has the meaning given to such term in
Section 2(f).
"Person" means an individual, trustee, corporation, partnership, joint
stock company, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof, union, business association,
firm or other entity.
"Private Exchange" has the meaning given to such term in Section 2(g).
"Private Exchange Securities" has the meaning given to such term in
Section 2(g).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Securities covered by
such Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchaser" has the meaning given to such term in the introductory
paragraph hereof.
"Purchase Agreement" means the Purchase Agreement dated as of December
22, 1997 by and between the Company and the Purchaser.
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"Registrable Securities" means (i) Notes, (ii) Private Exchange
Securities and (iii) Exchange Securities received in the Exchange Offer that may
not be sold without restriction under federal or state securities law.
"Registration Default Date" has the meaning given to such term in
Section 4(a).
"Registration Statement" means any registration statement of the
Company that covers any of the Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
"Rule 415" means Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Shelf Notice" has the meaning given to such term in Section 2(i).
"Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
"Special Counsel" means counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
"Subsequent Shelf Registration" has the meaning given to such term in
Section 3(b).
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the trustee under the Indenture and, if any, the
trustee under any indenture governing the Exchange Securities or the Private
Exchange Securities.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
"Weekly Liquidated Damages Amount" has the meaning given to such term
in Section 4(a).
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2. Exchange Offer.
(a) The Company shall (i) prepare and file with the SEC
promptly after the date hereof, but in no event later than the Filing
Date, a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with
respect to a proposed offer (the "Exchange Offer") to the Holders to
issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Securities, (ii) use its best
efforts to cause the Exchange Offer Registration Statement to become
effective as promptly as practicable after the filing thereof, but in
no event later than the Effectiveness Date, (iii) keep the Exchange
Offer Registration Statement effective until the consummation of the
Exchange Offer pursuant to its terms, and (iv) unless the Exchange
Offer would not be permitted by a policy of the SEC, commence the
Exchange Offer and use its best efforts to issue, on or prior to 30
Business Days after the date on which the Exchange Offer Registration
Statement is declared effective, Exchange Securities in exchange for
all Notes tendered prior thereto in the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC and (ii) as otherwise expressed
herein.
(b) The Exchange Securities shall be issued under, and
entitled to the benefits of, the Indenture or a trust indenture that is
identical to the Indenture (other than such changes as are necessary to
comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA).
(c) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal that is an
exhibit to the Exchange Offer Registration Statement and
related documents;
(ii) keep the Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) utilize the services of a depository for the
Exchange Offer with an address in the Borough of Manhattan,
The City of New York;
(iv) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain
open; and
(v) otherwise comply with all laws applicable to the
Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer;
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(ii) deliver to the Trustee for cancellation all
Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Notes, Exchange Securities equal in
aggregate principal amount to the Notes of such Holder so
accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange
Security will accrue (or principal will accrete, as applicable) from
the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on
the Notes, from the date of original issue of the Notes. Each Exchange
Security and Private Exchange Security shall bear interest at the rate
set forth thereon; provided, that interest with respect to the period
prior to the issuance thereof shall accrue at the rate or rates borne
by the Notes from time to time during such period.
(f) The Company shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution," containing a summary statement of the positions taken
or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). Such "Plan of Distribution" section
shall also allow the use of the Prospectus by all Persons subject to
the prospectus delivery requirements of the Securities Act, including
(without limitation) all Participating BrokersDealers, and include a
statement describing the means by which Participating Broker-Dealers
may resell the Exchange Securities. The Company shall use its best
efforts to keep the Exchange Offer Registration Statement effective and
to amend and supplement the Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirement of the
Securities Act for such period of time as such Persons must comply with
such requirements in order to resell the Exchange Securities; provided
that such period shall not exceed 180 days after consummation of the
Exchange Offer (as such period may be extended pursuant to the last
paragraph of Section 6 (the "Applicable Period").
(g) If, prior to consummation of the Exchange Offer, the
Purchaser holds any Securities acquired by it and having the status as
an unsold allotment in the initial distribution, the Company shall,
upon the request of the Purchaser, simultaneously with the delivery of
the Exchange Securities in the Exchange Offer, issue (pursuant to the
same indenture as the Exchange Securities) and deliver to the
Purchaser, in exchange for the Securities held by the Purchaser (the
"Private Exchange"), a like principal amount of debt securities of the
Company that are identical to the Exchange Securities (the "Private
Exchange Securities"). The Private Exchange Securities shall bear the
same CUSIP number as the Exchange Securities.
(h) The Company may require each Holder participating in the
Exchange Offer to represent to the Company that at the time of the
consummation of the Exchange Offer (i) any Exchange Securities received
by such Holder in the Exchange Offer will be acquired in the ordinary
course of its business, (ii) such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the
Exchange Securities within the meaning of the Securities Act or resale
of the Exchange Securities in violation of the Securities Act, (iii) if
such Holder is not a broker-dealer, that it is not engaged in and does
not intend to engage in,
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the distribution of the Exchange Securities, (iv) if such Holder is a
broker-dealer that will receive Exchange Securities for its own account
in exchange for Notes that were acquired as a result of market-making
or other trading activities, that it will deliver a prospectus, as
required by law, in connection with any resale of such Exchange
Securities and (v) if such Holder is an affiliate of the Company, that
it will comply with the registration and prospectus delivery
requirements of the Securities Act applicable to it.
(i) If (i) prior to the consummation of the Exchange Offer,
either the Company or the Holders of a majority in aggregate principal
amount of Registrable Securities determines in its or their reasonable
judgment that (A) the Exchange Securities would not, upon receipt, be
tradeable by the Holders thereof without restriction under the
Securities Act and the Exchange Act and without material restrictions
under applicable Blue Sky or state securities laws, or (B) the
interests of the Holders under this Agreement, taken as a whole, would
be materially adversely affected by the consummation of the Exchange
Offer, (ii) applicable interpretations of the staff of the SEC would
not permit the consummation of the Exchange Offer prior to 90 days
after the Effectiveness Date, (iii) subsequent to the consummation of
the Private Exchange but within one year of the Closing Date, the
Purchaser so requests, (iv) the Exchange Offer is not consummated
within 270 days of the Closing Date for any reason or (v) in the case
of any Holder not permitted to participate in the Exchange Offer or of
any Holder participating in the Exchange Offer that receives Exchange
Securities that may not be sold without material restriction under
state and federal securities laws (other than due solely to the status
of such Holder as an affiliate of the Company within the meaning of the
Securities Act) and, in either case contemplated by this clause (v),
such Holder notifies the Company within six months of consummation of
the Exchange Offer, then the Company shall promptly deliver to the
Holders (or in the case of any occurrence of the event described in
clause (v) of this Section 2(i), to any such Holder) and the Trustee
notice thereof (the "Shelf Notice") and shall as promptly as possible
thereafter file an Initial Shelf Registration pursuant to Section 3.
3. Shelf Registration. If a Shelf Notice is required to be delivered
pursuant to Section 2(a)(i), (ii), (iii) or (iv), then this Section 3 shall
apply to all Registrable Securities. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of this Section 3
shall apply solely with respect to (i) Notes held by any Holder thereof not
permitted to participate in the Exchange Offer and (ii) Exchange Securities that
are not freely tradeable as contemplated by Section 2(i)(v).
(a) Initial Shelf Registration. The Company shall use its best
efforts to prepare and file with the SEC a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Securities (the "Initial Shelf
Registration"). If the Company has not yet filed an Exchange Offer
Registration Statement, the Company shall use its best efforts to file
with the SEC the Initial Shelf Registration on or prior to the Filing
Date. Otherwise, the Company shall use its best efforts to file the
Initial Shelf Registration within 20 days of the delivery of the Shelf
Notice or as promptly as possible following the request of the
Purchaser. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable
Securities for resale by such holders in the manner or manners
designated by them (including, without limitation, one or more
underwritten offerings). The Company shall (i) not permit any
securities other than the Registrable Securities to be included in any
Shelf Registration, and (ii) use its best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act as
promptly as practicable after the filing thereof and to keep the
Initial Shelf Registration continuously
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effective under the Securities Act until the date that is 24 months
from the Effectiveness Date (subject to extension pursuant to the last
paragraph of Section 6) (the "Effectiveness Period"), or such shorter
period ending when (i) all Registrable Securities covered by the
Initial Shelf Registration have been sold or (ii) a Subsequent Shelf
Registration covering all of the Registrable Securities has been
declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If any Shelf Registration
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
Registrable Securities registered thereunder), the Company shall use
its best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend the Shelf Registration in
a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the
Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its best
efforts to cause the Subsequent Shelf Registration to be declared
effective as soon as practicable after such filing and to keep such
Subsequent Shelf Registration continuously effective for a period equal
to the number of days in the Effectiveness Period less the aggregate
number of days during which the Initial Shelf Registration, and any
Subsequent Shelf Registration, was previously effective.
4. Liquidated Damages.
(a) The Company acknowledges and agrees that the holders
of Registrable Securities will suffer damages, and that it would not be
feasible to ascertain the extent of such damages with precision, if the
Company fails to fulfill its obligations hereunder. Accordingly, in the
event of such failure, the Company agrees to pay liquidated damages to
each Holder under the circumstances and to the extent set forth below:
(i) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed
with the SEC on or prior to the Filing Date; or
(ii) if neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared
effective by the SEC on or prior to the Effectiveness Date; or
(iii) if the Company has not accepted for exchange
all Notes validly tendered in accordance with the terms of the
Exchange Offer within 30 Business Days after the date on which
an Exchange Offer Registration Statement is declared effective
by the SEC; or
(iv) if a Shelf Registration is filed and declared
effective by the SEC but thereafter ceases to be effective
without being succeeded within 30 days by a Subsequent Shelf
Registration filed and declared effective;
(each of the foregoing a "Registration Default," and the date on which
the Registration Default occurs being referred to herein as a
"Registration Default Date").
Upon the occurrence of any Registration Default, the
Company shall be obligated to pay, or cause to be paid, in addition to
amounts otherwise due under the Indenture
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and the Registrable Securities, as liquidated damages, and not as a
penalty, to each holder of a Registrable Security, an additional amount
(the "Weekly Liquidated Damages Amount") equal to (A) for each weekly
period beginning on the Registration Default Date for the first 120-day
period immediately following such Registration Default Date, $0.05 per
week per $1,000 principal amount of Registrable Securities held by such
holder, and (B) for each weekly period beginning with the first full
week after the 120-day period set forth in the foregoing clause (A),
$0.15 per week per $1,000 principal amount of Registrable Securities
held by such holder; provided that such liquidated damages will, in
each case, cease to accrue (subject to the occurrence of another
Registration Default) on the date on which all Registration Defaults
have been cured. A Registration Default under clause (i) above shall be
cured on the date that either the Exchange Offer Registration Statement
or the Initial Shelf Registration is filed with the SEC; a Registration
Default under clause (ii) above shall be cured on the date that either
the Exchange Offer Registration Statement or the Initial Shelf
Registration is declared effective by the SEC; a Registration Default
under clause (iii) above shall be cured on the earlier of the date (A)
the Exchange Offer is consummated with respect to all Notes validly
tendered or (B) the Company delivers a Shelf Notice to the Holders; and
a Registration Default under clause (iv) above shall be cured on the
earlier of (A) the date on which the applicable Shelf Registration is
no longer subject to an order suspending the effectiveness thereof or
proceedings relating thereto or (B) a Subsequent Shelf Registration is
declared effective.
(b) The Company shall notify the Trustee within five Business
Days after each Registration Default Date. The Company shall pay the
liquidated damages due on the Registrable Securities by depositing with
the Trustee, in trust, for the benefit of the Holders thereof, by 12:00
noon, New York City time, on or before the semi-annual interest payment
date for any of the Registrable Securities, immediately available funds
in sums sufficient to pay the liquidated damages then due. The
liquidated damages amount due shall be payable on each interest payment
date to the Holder entitled to receive the interest payment to be made
on such date as set forth in the Indenture.
5. Hold-Back Agreements. The Company agrees (i) without the prior
written consent of the Holders of a majority of the aggregate principal amount
of the then outstanding Securities, not to effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or substantially similar to those covered by
a Registration Statement filed pursuant to Section 2 or 3, or any securities
convertible into or exchangeable or exercisable for such securities, during the
10 days prior to, and during the 90-day period beginning on, (A) the effective
date of any Registration Statement filed pursuant to Sections 2 and 3, unless
the Holders of a majority in aggregate principal amount of Registrable
Securities to be included in such Registration Statement consent or (B) the
commencement of an underwritten public distribution of Registrable Securities,
where the managing underwriter so requests; and (ii) to cause each holder of
such securities that are the same as or substantially similar to Registrable
Securities issued at any time after the date of this Agreement (other than
securities purchased in a registered public offering) to agree, unless prevented
by applicable statute or regulation, not to effect any public sale or
distribution of any such securities during such periods, including a sale
pursuant to Rule 144 or Rule 144A.
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6. Registration Procedures. In connection with the registration of any
Securities pursuant to Sections 2 or 3, the Company shall effect such
registrations to permit the sale of such Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company shall:
(a) Prepare and file with the SEC, as soon as practicable
after the date hereof but in any event on or prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use its best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, that, if (i) such filing is pursuant to
Section 3 or (ii) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall, if requested,
furnish to and afford the Holders of the Registrable Securities covered
by such Registration Statement, their Special Counsel, each
Participating Broker-Dealer, the managing underwriters, if any, and
their counsel, a reasonable opportunity to review and make available
for inspection by such Persons copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed, such financial and other
information and books and records of the Company, and cause the
officers, directors and employees of the Company, Company counsel and
independent certified public accountants of the Company, to respond to
such inquiries, as shall be necessary, in the opinion of respective
counsel to such holders, Participating Broker-Dealer and underwriters,
to conduct a reasonable investigation within the meaning of the
Securities Act. The Company may require each Holder to agree to keep
confidential any non-public information relating to the Company
received by such Holder and not disclose such information (other than
to an Affiliate or prospective purchaser who agrees to respect the
confidentiality provisions of this Section 6(a)) until such information
has been made generally available to the public unless the release of
such information is required by law or necessary to respond to
inquiries of regulatory authorities (including the National Association
of Insurance Commissioners, or similar organizations or their
successors). The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which
the Holders must be afforded an opportunity to review prior to the
filing of such document, if the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such
Registration Statement, their Special Counsel, any Participating
Broker-Dealer or the managing underwriters, if any, or their counsel
shall reasonably object.
(b) Provide an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause
the Indenture (or other indenture relating to the Registrable
Securities) to be qualified under the TIA not later than the effective
date of the first Registration Statement; and in connection therewith,
to effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its best efforts to cause such 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 such
indenture to be so qualified in a timely manner.
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(c) Prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the time periods required hereby; cause the related Prospectus to
be supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply
in all material respects with the provisions of the Securities Act and
the Exchange Act applicable thereto with respect to the disposition of
all securities covered by such Registration Statement, as so amended,
or in such Prospectus, as so supplemented, in accordance with the
intended methods of distribution set forth in such Registration
Statement or Prospectus as so amended.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Company's receipt, a copy of
the order of the SEC declaring such Registration Statement and any
post-effective amendment thereto effective and (ii) such reasonable
number of copies of such Registration Statement and of each amendment
and supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary Prospectus), and
such reasonable number of copies of the final Prospectus as filed by
the Company pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act, and (iv) such
other documents (including any amendments required to be filed pursuant
to clause (c) of this Section), as any such Person may reasonably
request. The Company hereby consent to the use of the Prospectus by
each of the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Securities covered by, or the sale
by Participating Broker-Dealers of the Exchange Securities pursuant to,
such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, notify the selling
Holders of Registrable Securities, their Special Counsel, each
Participating Broker-Dealer and the managing underwriters, if any,
promptly (but in any event within two Business Days), and confirm such
notice in writing, (i) when a Prospectus has been filed, and, with
respect to a Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act, (ii) of
the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement or of any order preventing or suspending
the use of any Prospectus or the initiation of any proceedings for that
purpose, (iii) if, at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Securities, the representations and warranties of the
Company contained in any agreement (including any underwriting
agreement) contemplated by Section 6(n) below cease to be true and
correct in any material respect, (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the contemplation, initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any
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material respect or that requires the making of any changes in such
Registration Statement, Prospectus or documents so that it will not
contain any untrue statement of a material fact or omit to state any
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, and (vi) of the Company's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(f) Use its reasonable efforts to register or qualify, and, if
applicable, to cooperate with the selling Holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of, Securities to be included in a
Registration Statement for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer or the managing underwriters
reasonably request in writing; and, if Securities are offered other
than through an Underwritten Offering, the Company shall cause its
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 6(f) at
the expense of the Company; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Securities covered by the
applicable Registration Statement, provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) to take action
that would subject it to general service of process in any jurisdiction
where it is not so subject or (iii) subject it to taxation in excess of
a nominal dollar amount in any such jurisdiction where it is not then
subject.
(g) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Securities for sale in any jurisdiction, and, if any such order is
issued, to use its best efforts to obtain the withdrawal of any such
order at the earliest possible time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, and if requested by
the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Securities, (i) promptly
incorporate in a Prospectus or post-effective amendment such
information as the managing underwriters, if any, or such Holders
reasonably request to be included therein required to comply with any
applicable law and (ii) make all required filings of such Prospectus or
such post-effective amendment as soon as practicable after the Company
has received notification of such matters required by Applicable Law to
be incorporated in such Prospectus or post-effective amendment.
(i) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, cooperate with the
selling Holders and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates
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representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible
for deposit with The Depository Trust Company ("DTC"); and enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may
reasonably request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3
or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, upon the occurrence
of any event contemplated by paragraph 6(e)(v) or 6(e)(vi) above, as
promptly as practicable prepare a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder or to the purchasers of the Exchange Securities
to whom such Prospectus will be delivered by a Participating
Broker-Dealer, such Prospectus will not 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.
(k) In good faith endeavor to cause the Securities covered by
a Registration Statement to be rated with the appropriate rating
agencies, if appropriate, if so requested by the Holders of a majority
in aggregate principal amount of Securities covered by such
Registration Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable
trustee with printed certificates for the Securities in a form eligible
for deposit with DTC and (ii) provide a CUSIP number for each of the
Securities.
(m) Use its best efforts to cause all Securities covered by
such Registration Statement to be listed on each securities exchange,
if any, on which similar debt securities issued by the Company are then
listed.
(n) If a Shelf Registration is filed pursuant to Section 3,
enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in Underwritten Offerings)
and take all such other actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the Registrable
Securities being sold) in order to expedite or facilitate the
registration or the disposition of such Registrable Securities, and in
such connection, regardless of whether an underwriting agreement is
entered into and regardless of whether the registration is an
Underwritten Registration, (i) make such representations and warranties
to the Holders and the underwriters, if any, with respect to the
business of the Company and its subsidiaries, and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, 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 reasonably
requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any,
and the Holders of a majority in aggregate principal amount of the
Registrable Securities being sold), addressed to each selling Holder
and each of the underwriters, if any, covering the matters
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customarily covered in opinions requested in Underwritten Offerings;
(iii) obtain "cold comfort" letters and updates thereof (which letters
and updates (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters) from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each of the underwriters and
each selling Holder, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with Underwritten Offerings and such other matters as
reasonably requested by underwriters; 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
and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement
or other similar agreement entered into by the Company.
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing on the first day of the fiscal quarter
following each fiscal quarter in which Registrable Securities are sold
to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private
Exchange, obtain an opinion of counsel to the Company (in form, scope
and substance reasonably satisfactory to the Purchaser), addressed to
all Holders participating in the Exchange Offer or Private Exchange, as
the case may be, to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Securities or the
Private Exchange Securities, as the case may be, and the Indenture,
(ii) the Exchange Securities or the Private Exchange Securities, as the
case may be, and the Indenture constitute legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforcement may
be subject to (x) applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and (y) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law), and
(iii) all obligations of the Company under the Exchange Securities or
the Private Exchange Securities, as the case may be, and the Indenture
are secured by Liens on the assets securing the obligations of the
Company under the Notes.
(q) If an Exchange Offer or Private Exchange is to be
consummated, upon delivery of the Registrable Securities by such
Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Company shall xxxx, or
caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in
no event shall such Registrable Securities be marked as paid or
otherwise satisfied.
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(r) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD.
(s) Use its best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities as the Company may, from time to time, reasonably request in writing.
The Company may exclude from such registration the Registrable Securities of any
seller or Exchange Securities of any Participating Broker-Dealer who
unreasonably fails to furnish such information.
Each Holder and each Participating Broker-Dealer agrees by
acquisition of such Registrable Securities or Exchange Securities of any
Participating Broker-Dealer that, upon receipt of written notice from the
Company of the happening of any event of the kind described in Section 6(e)(ii),
6(e)(iv), 6(e)(v) or 6(e)(vi), such Holder will forthwith discontinue
disposition (in the jurisdictions specified in a notice of a 6(e)(iv) event, and
elsewhere in a notice of a 6(e)(ii), 6(e)(v) or 6(e)(vi) event) of such
Securities covered by such Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(j), or until it is advised in writing (the "Advice")
by the Company that offers or sales in a particular jurisdiction may be resumed
or that the use of the applicable Prospectus may be resumed, as the case may be,
and has received copies of any amendments or supplements thereto. If the Company
shall give such notice, each of the Effectiveness Period and the Applicable
Period shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each seller of such Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 6(j) or (y) the Advice.
7. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the
Company, regardless of whether the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without
limitation:
(i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required
to be made with the NASD and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the
Registrable Securities or Exchange Securities and
determination of the eligibility of the Registrable Securities
or Exchange Securities for investment under the laws of such
jurisdictions (x) where the Holders are located, in the case
of the Exchange Securities, or (y) as provided in Section
6(f), in the case of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during
the Applicable Period);
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(ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable
Securities or Exchange Securities in a form eligible for
deposit with DTC and of printing Prospectuses if the printing
of Prospectuses is requested by the managing underwriters, if
any, or, in respect of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during
the Applicable Period, by the Holders of a majority in
aggregate principal amount of the Registrable Securities
included in any Registration Statement or of such Exchange
Securities, as the case may be);
(iii) messenger, telephone, duplication, word
processing and delivery expenses incurred by the Company in
the performance of its obligations hereunder;
(iv) fees and disbursements of counsel for the
Company;
(v) fees and disbursements of all independent
certified public accountants referred to in Section 6(n)(iii)
(including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to
such performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in
an offering pursuant to Section 3 of Schedule E to the By-laws
of the NASD, but only where the need for such a "qualified
independent underwriter" arises due to a relationship with the
Company;
(vii) Securities Act liability insurance, if the
Company so desires such insurance;
(viii) fees and expenses of all other Persons
retained by the Company; internal expenses of the Company
(including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or
accounting duties); and the expense of any annual audit; and
(ix) rating agency fees and the fees and expenses
incurred in connection with the listing of the Securities to
be registered on any securities exchange.
(b) The Company shall reimburse the Holders for the reasonable
fees and disbursements of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a majority in
aggregate principal amount of the Registrable Securities to be
included in any Registration Statement and other reasonable and
necessary out-of-pocket expenses of the Holders incurred in connection
with the registration of the Registrable Securities.
8. Indemnification.
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless each Holder and each
Participating Broker-Dealer selling Exchange Securities during the
Applicable Period, each Person who controls each such Holder (within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act) and the officers, directors, partners, employees,
representatives and agents of each such Holder, Participating
Broker-Dealer and controlling person, to the fullest extent lawful,
from
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and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation and
reasonable attorneys' fees) and expenses (including, without
limitation, reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the
foregoing) (collectively, "Losses"), as incurred, directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or form of
prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, 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 the light of the circumstances under
which they were made, not misleading, except insofar as such Losses are
based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company by such Holder or
Participating Broker-Dealer expressly for use therein; provided,
however, that the Company shall not be liable to any Indemnified Party
to the extent that any such losses arise solely out of an untrue
statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if (i) such Indemnified Party or
related holder of a Registrable Security failed to send or deliver a
copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Indemnified Party or the related
holder of a Registrable Security to the person asserting the claim from
which such Losses arise, (ii) the Prospectus would have corrected such
untrue statement or alleged untrue statement or omission or alleged
omission, and (iii) the Company has complied with its obligations under
Section 6(e). The Company shall also, jointly and severally, indemnify
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their
officers, directors, agents and employees and each Person who controls
such Persons (within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Holders or the Participating
Broker-Dealer.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement, Prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus in which a Holder is participating, such Holder shall
furnish to the Company in writing such information as the Company
reasonably requests for use in connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without
limitation as to time, indemnify and hold harmless the Company, its
officers, directors, partners, employees, representatives and agents,
each Person, if any, who controls the Company (within the meaning of
Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the officers, directors, partners, employees, representatives
and agents of such controlling persons, to the fullest extent lawful,
from and against all Losses arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, 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 the light of the circumstances under which they were made,
not misleading to the extent, but only to the extent, that such untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact is contained in any information so
furnished in writing by such holder to the Company expressly for use
therein. In no event shall the liability of any selling Holder be
greater in amount than the dollar amount of the proceeds (net of
payment of
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all expenses) received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party or parties from which such indemnity is
sought (the "Indemnifying Parties") in writing; provided, that the
failure to so notify the Indemnifying Parties shall not relieve the
Indemnifying Parties from any obligation or liability except to the
extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that the
Indemnifying Parties have been prejudiced materially by such failure.
The Indemnifying Party shall have the right,
exercisable by giving written notice to an Indemnified Party, within 20
Business Days after receipt of written notice from such Indemnified
Party of such Proceeding, to assume, at its expense, the defense of any
such Proceeding, provided, that an Indemnified Party shall have the
right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party or parties
unless: (1) the Indemnifying Party has agreed to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding or shall have failed to employ
counsel reasonably satisfactory to such Indemnified Party; or (3) the
named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party or any
of its affiliates or controlling persons, and such Indemnified Party
shall have been advised by counsel that there may be one or more
defenses available to such Indemnified Party that are in addition to,
or in conflict with, those defenses available to the Indemnifying Party
or such affiliate or controlling person (in which case, if such
Indemnified Party notifies the Indemnifying Parties in writing that it
elects to employ separate counsel at the expense of the Indemnifying
Parties, the Indemnifying Parties shall not have the right to assume
the defense thereof and the reasonable fees and expenses of such
counsel shall be at the expense of the Indemnifying Party; it being
understood, however, that, the Indemnifying Party shall not, in
connection with any one such Proceeding or separate but substantially
similar or related Proceedings in the same jurisdiction, arising out of
the same general allegations or circumstances, be liable for the fees
and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for such Indemnified Parties).
No Indemnifying Party shall be liable for any
settlement of any such Proceeding effected without its written consent,
but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such Proceeding, each Indemnifying
Party jointly and severally agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each
Indemnified Party from and against any and all Losses by reason of such
settlement or judgment. The Indemnifying Party shall not consent to the
entry of any judgment against an indemnified party or enter into any
settlement that imposes any obligation on any indemnified party that
does not include as a term thereof the giving by the claimant or
plaintiff to each Indemnified Party of a release, in form and substance
reasonably satisfactory to the Indemnified Party, from all liability in
respect of such Proceeding for which such Indemnified Party would be
entitled to indemnification hereunder (regardless of whether any
Indemnified Party is a party thereto).
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(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party or is insufficient to
hold such Indemnified Party harmless for any Losses in respect of which
this Section 8 would otherwise apply by its terms (other than by reason
of exceptions provided in this Section 8), then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall have a joint and several obligation to contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses,
in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party, on the one hand, and such Indemnified Party, on
the other hand, in connection with the actions, statements or omissions
that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party, on the
one hand, and Indemnified Party, on the other hand, shall be determined
by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such
Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent any such statement or omission. The amount paid or payable by
an Indemnified Party as a result of any Losses shall be deemed to
include any legal or other fees or expenses incurred by such party in
connection with any Proceeding, to the extent such party would have
been indemnified for such fees or expenses if the indemnification
provided for in Section 8(a) or 8(b) was available to such party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) 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 the
immediately preceding paragraph. Notwithstanding the provisions of this
Section 8(d), an Indemnifying Party that is a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of
such Holder's Maximum Contribution Amount. A selling Holder's "Maximum
Contribution Amount" shall equal the excess of (i) the aggregate
proceeds received by such Holder pursuant to the sale of such
Registrable Securities over (ii) the aggregate amount of damages that
such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that the Indemnifying Parties may
have to the Indemnified Parties.
9. Rule 144 and Rule 144A. The Company covenants that it shall (a) file
the reports required to be filed by it (if so required) under the Securities Act
and the Exchange Act in a timely manner and, if at any time any such Person is
not required to file such reports, it will, upon the request of any Holder, make
publicly available other information necessary to permit sales pursuant to Rule
144 and Rule 144A and (b) take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company shall deliver to such Holder a written statement as
to whether they have complied with such information and requirements.
10. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration are to be sold in an Underwritten Offering,
the investment banker or investment bankers
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and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable 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 questionnaires, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
11. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of any
of its obligations under this Agreement, each Holder, in addition to
being entitled to exercise all rights provided herein, in the Indenture
or, in the case of the Purchaser, in the Purchase Agreement, or granted
by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action
for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered
into, as of the date hereof, and shall not enter into, after the date
of this Agreement, any agreement with respect to any of its securities
that is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof.
(c) 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 has obtained the
written consent of Holders of at least a majority of the then
outstanding aggregate principal amount of Registrable Securities;
provided, that Sections 6(a) and 8 shall not be amended, modified or
supplemented, and waivers or consents to departures from this proviso
may not be given, unless the Company has obtained the written consent
of each Holder affected thereby. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to
a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may
be given by Holders of at least a majority in aggregate principal
amount of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement, provided that the provisions
of this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, certified first-class mail, return receipt requested,
next-day air courier or facsimile:
(i) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 11(d), which address initially is,
with respect to each Holder, the address of such holder
maintained by the
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Registrar under the Indenture, with a copy to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, telecopy number (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxx, Xx.; and
(ii) if to the Company, at 0000 Xxxxx Xxx Xxxxxxx
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000-0000, telecopy
number (000) 000-0000, Attention: President, with a copy to
Gardere & Xxxxx, L.L.P., 0000 Xxxxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxx 00000, telecopy number (000) 000-0000, Attention: C.
Xxxxxx Xxxxxxxxxxx;
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 11(d).
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if
mailed; one Business Day after being timely delivered to a next-day air
courier; and when receipt is acknowledged by the addressee, if
telecopied. Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee under the Indenture at the address specified in such Indenture.
(e) 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.
(f) 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.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
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FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
COMPANY IN ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is 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 in respect of
securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the
courts, shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and any other available remedy.
(l) Securities Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities
held by the Company or its affiliates (as such term is defined in Rule
405 under the Securities Act) (other than Holders deemed to be such
affiliates solely by reason of their holdings of such Registrable
Securities) shall not be counted in determining whether such consent or
approval was given by the holders of such required percentage.
[Signature Page Follows]
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REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
TRANSAMERICAN REFINING CORPORATION
By:
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Name:
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Title:
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Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By:
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Name:
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Title:
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