EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
Dated September 24, 2004
between
CRYSTAL US HOLDINGS 3 L.L.C.
CRYSTAL US SUB 3 CORP.
and
BANC OF AMERICA SECURITIES LLC
$163,000,000 10% SERIES A SENIOR DISCOUNT NOTES DUE 2014
$690,000,000 10 1/2% SERIES B SENIOR DISCOUNT NOTES DUE 2014
REGISTRATION RIGHTS AGREEMENT
September 24, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Crystal US Holdings 3 L.L.C., a Delaware limited liability company
("DELAWARE LLC") and Crystal US Sub 3 Corp., a Delaware corporation ("DELAWARE
CORP.", and Delaware LLC and Delaware Corp., together the "ISSUERS") propose to
issue and sell to Banc of America Securities LLC (the "INITIAL PURCHASER")
$163,000,000 aggregate principal amount at maturity of their 10% Series A Senior
Discount Notes due 2014 ("SERIES A NOTES") and $690,000,000 aggregate principal
amount at maturity of their 10 1/2% Series B Senior Discount Notes due 2014
("SERIES B NOTES" and Series A Notes and Series B Notes, the "SECURITIES") upon
the terms set forth in the Purchase Agreement among the Issuers and the Initial
Purchaser, dated September 17, 2004 (the "PURCHASE AGREEMENT"), relating to the
initial placement (the "INITIAL PLACEMENT") of the Securities. To induce the
Initial Purchaser to enter into the Purchase Agreement and to satisfy a
condition to your obligations thereunder, the Issuers agree with you for your
benefit and the benefit of the holders from time to time of the Securities
(including the Initial Purchaser) (each, a "HOLDER" and, collectively, the
"HOLDERS"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
"ACT" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"AFFILIATE" shall have the meaning specified in Rule 405 under
the Act and the term "controlling" shall have a meaning correlative
thereto.
"BROKER-DEALER" shall mean any broker or dealer registered as
such under the Exchange Act.
"BUSINESS DAY" shall mean a day other than a Saturday, a
Sunday or a legal holiday or day on which banking institutions or trust
companies are authorized or required by law to close in New York City.
"CLOSING DATE" shall mean the date of the first issuance of the
Securities.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DEFERRAL PERIOD" shall have the meaning set forth in Section
4(k)(ii) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE OFFER" shall mean the exchange offer by the Issuers of
Securities for Registrable Securities pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION PERIOD" shall mean the period of 90
days following the consummation of the Registered Exchange Offer, exclusive
of any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement of the Issuers on an appropriate form under the Act with respect
to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in
each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean debt securities of the Issuers,
in each case identical in all material respects to the Securities (except
that the transfer restrictions and liquidated damages provisions will be
eliminated, as appropriate) to be issued under the Exchange Securities
Indenture.
"EXCHANGE SECURITIES INDENTURE" shall mean the Indenture or an
indenture among the Issuers and the Exchange Securities Trustee, identical
in all material respects to the Indenture (except that the transfer
restrictions and liquidated damages provisions will be eliminated, as
appropriate), which may be the Indenture if in the terms thereof
appropriate provision is made for the Exchange Securities.
"EXCHANGE SECURITIES TRUSTEE" shall mean the Trustee or a bank or
trust company satisfactory to the Initial Purchaser, as trustee with
respect to the Exchange Securities under the Exchange Securities Indenture.
For the purposes of the Exchange
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Securities Indenture, The Bank of New York is deemed satisfactory to the
Initial Purchaser.
"EXCHANGING DEALER" shall mean any Holder (which may include the
Initial Purchaser) that is a Broker-Dealer and elects to exchange for
Exchange Securities any Securities that it acquired for its own account as
a result of market-making activities or other trading activities (but not
directly from any Issuer or any Affiliate of any Issuer) for Exchange
Securities.
"FINAL MEMORANDUM" shall mean the offering memorandum, dated
September 21, 2004, relating to the Securities, including any and all
supplements or exhibits thereto and any information incorporated by
reference therein as of such date.
"HOLDER" shall have the meaning set forth in the preamble hereto.
"HOLDINGS" shall have the meaning set forth in the preamble
hereto.
"INDENTURE" shall mean that certain Indenture relating to the
Securities, dated as of September 24, 2004, among the Issuers and The Bank
of New York, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"INITIAL PLACEMENT" shall have the meaning set forth in the
preamble hereto.
"INITIAL PURCHASER" shall have the meaning set forth in the
preamble hereto.
"ISSUERS" shall have the meaning set forth in the preamble
hereto.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
8 hereof.
"LOSSES" shall have the meaning set forth in Section 6(d) hereof.
"MAJORITY HOLDERS" shall mean, on any date, Holders of a majority
of the aggregate principal amount of Securities and Exchange Securities
registered under a Registration Statement.
"MANAGING UNDERWRITERS" shall mean the investment banker or
investment bankers and manager or managers who administer an underwritten
offering, if any, under a Registration Statement.
"NASD RULES" shall mean the Conduct Rules and the By-laws of the
National Association of Securities Dealers, Inc.
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"PARENT" shall mean BCP Crystal Holdings Ltd. 2, a company
incorporated with limited liability under the laws of the Cayman Islands.
"PROSPECTUS" shall mean 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 under the
Act), as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Securities or the
Exchange Securities covered by such Registration Statement, and all
amendments and supplements thereto, including any and all exhibits thereto
and any information incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble hereto.
"REGISTERED EXCHANGE OFFER" shall mean the proposed offer of the
Issuers to issue and deliver to the Holders of Securities, which Holders
are not prohibited by any law or policy of the Commission from
participating in such offer, in exchange for the Securities, a like
aggregate principal amount of the Exchange Securities.
"REGISTRABLE SECURITIES" shall mean (i) Securities other than
those that have been (A) registered under a Registration Statement and
disposed of in accordance therewith or (B) distributed to the public
pursuant to Rule 144 under the Act or any successor rule or regulation
thereto that may be adopted by the Commission and (ii) any Exchange
Securities the resale of which by the Holder thereof requires compliance
with the prospectus delivery requirements of the Act.
"REGISTRATION STATEMENT" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of
the Securities or the Exchange Securities pursuant to the provisions of
this Agreement, any 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.
"SECURITIES" shall have the meaning set forth in the preamble
hereto.
"SHELF REGISTRATION" shall mean a registration effected pursuant
to Section 3 hereof.
"SHELF REGISTRATION PERIOD" shall have the meaning set forth in
Section 3(b)(ii) hereof.
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"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 3 hereof
which covers some or all of the Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amend-ments 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.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"TRUSTEE" shall mean the trustee with respect to the Securities
under the Indenture.
"UNDERWRITER" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer.
(a) The Issuers shall prepare and use their reasonable best
efforts to file with the Commission and cause to become effective the
Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Issuers shall use their reasonable best efforts to
cause the Registered Exchange Offer to be completed under the Act within
270 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Issuers shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder (i) is not an Affiliate of the Issuers, (ii)
acquires the Exchange Securities in the ordinary course of such Holder's
business, (iii) has no arrangements with any person to participate in the
distribution of the Exchange Securities, (iv) is not prohibited by any law
or policy of the Commission from participating in the Registered Exchange
Offer and (v) is not the Initial Purchaser holding Securities that have the
status of an unsold allotment remaining from the initial distribution of
the Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion
of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Issuers shall:
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(i) mail or cause to be mailed to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
(ii) keep the Registered Exchange Offer open for at
least 20 Business Days (or longer if required by applicable law) after
the date notice thereof is mailed to the Holders;
(iii) use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective under the
Act, supplemented and amended as required under the Act, to ensure
that it is available for sales of Exchange Securities by Exchanging
Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan
in New York City, which may be the Trustee, the Exchange Securities
Trustee or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the
Commission (A) stating that the Issuers are conducting the Registered
Exchange Offer in reliance on the position of the Commission in Exxon
Capital Holdings Corporation (pub. avail. May 13, 1988), ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co., Inc. (pub. avail. June 5, 1991) and (B) including a
representation that the Issuers have not entered into any arrangement
or understanding with any person to distribute the Exchange Securities
to be received in the Registered Exchange Offer and that, to the best
of the Issuers' information and belief, each Holder participating in
the Registered Exchange Offer is acquiring the Exchange Securities in
the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of
the Exchange Securities; and
(vii)comply in all respects with all laws applicable to
the Registered Exchange Offer.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Issuers shall:
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(i) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 4(s) hereof all Securities so accepted for
exchange; and
(iii)cause the Exchange Securities Trustee promptly to
authenticate and deliver to each Holder of Securities a principal
amount of Exchange Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the Exchange Securities (x) could not
under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5,
1991), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993 and similar no-action letters and (y) must comply with
the registration and prospectus delivery requirements of the Act in
connection with any secondary resale transaction, which must be covered by
an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
under the Act if the resales are of Exchange Securities obtained by such
Holder in exchange for Securities acquired by such Holder directly from any
Issuer or any Affiliate of any Issuer. Accordingly, each Holder
participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the
Registered Exchange Offer:
(i) any Exchange Securities received by such Holder
shall be acquired in the ordinary course of business;
(ii) such Holder shall have no arrangement or
understanding with any person to participate in the distribution
within the meaning of the Act of the Securities or the Exchange
Securities;
(iii)such Holder is not an Affiliate of the Issuers;
and
(iv) if such Holder is an Exchanging Dealer, then such
Holder will deliver a Prospectus in connection with a sale of any
Exchange Securities received by such Holder pursuant to the Registered
Exchange Offer.
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(f) If the Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to
the exchange of Securities constituting any portion of an unsold allotment,
at the request of the Initial Purchaser, the Issuers shall issue and
deliver to the Initial Purchaser or the person purchasing Exchange
Securities registered under a Shelf Registration Statement as contemplated
by Section 3 hereof from the Initial Purchaser, in exchange for such
Securities, a like principal amount of Exchange Securities. The Issuers
shall use their reasonable best efforts to cause the CUSIP Service Bureau
to issue the same CUSIP number and International Securities Identification
Number ("ISIN") for such Exchange Securities as for Exchange Securities
issued pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Issuers determine
upon advice of their outside counsel that it is not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any
other reason the Registered Exchange Offer is not consummated within 270
days of the Closing Date; (iii) the Initial Purchaser so requests with
respect to Securities that are not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and that are held by it
following consummation of the Registered Exchange Offer; (iv) any Holder
(other than the Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer; or (v) in the case that the Initial Purchaser
participates in the Registered Exchange Offer or acquires Exchange
Securities pursuant to Section 2(f) hereof, the Initial Purchaser does not
receive freely tradeable Exchange Securities in exchange for Securities
constituting any portion of an unsold allotment (it being understood that
(x) the requirement that the Initial Purchaser deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K
under the Act in connection with sales of Exchange Securities acquired in
exchange for such Securities shall result in such Exchange Securities being
not "freely tradeable;" and (y) the requirement that an Exchanging Dealer
deliver a Prospectus in connection with sales of Exchange Securities
acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradeable"), the Issuers shall file and use their reasonable best efforts
to cause to become and keep effective a Shelf Registration Statement in
accordance with subsection (b) below.
(b) (i) The Issuers shall use their reasonable best efforts
to as promptly as practicable file with the Commission and shall use their
reasonable best efforts to cause to be declared effective under the Act
within 270 days, a Shelf Registration Statement relating to the offer and
sale of the Securities or the Exchange Securities, as applicable, by the
Holders thereof from time to time in accordance with the methods
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of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than the
Initial Purchaser) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable
to such Holder; and provided further, that with respect to Exchange
Securities received by the Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Issuers may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation S-K,
as applicable, in satisfaction of their obligations under this subsection
with respect thereto, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Issuers shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in order
to permit the Prospectus forming part thereof to be usable by Holders
for a period from the date the Shelf Registration Statement is
declared effective by the Commission until the earliest of: (A) the
second anniversary of the Closing Date, (B) the date upon which all
the Securities or Exchange Securities, as applicable, covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or (C) the date upon which the Securities or
Exchange Securities, as applicable, covered by the Shelf Registration
Statement become eligible for resale, without regard to volume, manner
of sale or other restrictions contained in Rule 144 under the Act
pursuant to paragraph (k) thereof (in any such case, the "SHELF
REGISTRATION PERIOD"). The Issuers shall be deemed not to have used
its reasonable best efforts to keep the Shelf Registration Statement
effective during the Shelf Registration Period if it voluntarily takes
any action that would result in Holders of Securities covered thereby
not being able to offer and sell such Securities at any time during
the Shelf Registration Period, unless such action is (x) required by
applicable law or otherwise taken by the Issuers in good faith and for
valid business reasons (not including avoidance of the Issuers'
obligations hereunder), including the acquisition or divestiture of
assets and (y) permitted pursuant to Section 4(k)(ii) hereof.
(iii)The Issuers shall cause the Shelf Registration
Statement and the related Prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf Registration Statement
or such amendment or supplement, (A) to comply in all material
respects with the applicable requirements of the Act and (B) not to
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or
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necessary in order to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Issuers shall:
(i) furnish to counsel for the Initial Purchaser and to
counsel for the Holders, not less than two (2) Business Days prior to
the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall use its
commercially reasonable best efforts to reflect in each such document,
when so filed with the Commission, such comments as counsel to the
Holders or counsel for the Initial Purchaser reasonably propose;
(ii) include the information set forth in Annex A
hereto on the facing page of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Exchange Offer, in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus contained in the Exchange Offer
Registration Statement and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange Offer;
(iii)if requested by the Initial Purchaser, include the
information required by Item 507 or 508, as applicable, of Regulation
S-K in the Prospectus contained in the Exchange Offer Registration
Statement or Shelf Registration Statement; and
(iv) in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell Securities
pursuant to the Shelf Registration Statement as selling security
holders.
(b) The Issuers shall use their reasonable best efforts to ensure
that:
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with the Act; and
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(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, 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 not
misleading.
(c) The Issuers shall advise counsel for the Initial Purchaser,
the Holders of Securities covered by any Shelf Registration Statement and
any Exchanging Dealer under any Exchange Offer Registration Statement that
has provided in writing to the Issuers a telephone or facsimile number and
address for notices, and, if requested by the Initial Purchaser or any such
Holder or Exchanging Dealer, shall confirm such advice in writing (which
notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Issuers shall
have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission after the
effective date for any amendment or supplement to the Registration
Statement or the Prospectus or for additional information;
(iii)of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the institution of any proceeding for that purpose;
(iv) of the receipt by the Issuers of any notification
with respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the institution of
any proceeding for such purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the Prospectus so that, as of
such date, they (A) do not contain any untrue statement of a material
fact and (B) do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which
they were made) not misleading.
(d) The Issuers shall use their commercially reasonable best
efforts to obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement or the qualification of the securities
therein for sale in any jurisdiction.
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(e) The Issuers shall furnish to each Holder of Securities
covered by any Shelf Registration Statement, without charge, at least one
(1) copy of such Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period,
deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including the
Preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request.
The Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities in
connection with the offering and sale of the Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which so
requests, without charge, at least one (1) conformed copy of the Exchange
Offer Registration Statement and any post-effective amendments thereto,
including all material incorporated by reference therein, and, if the
Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Issuers shall promptly deliver to the Initial Purchaser,
each Exchanging Dealer and each other person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge,
as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendments or supplements thereto as any
such person may reasonably request. The Issuers consent to the use of the
Prospectus or any amendments or supplements thereto by the Initial
Purchaser, any Exchanging Dealer and any such other person that may be
required to deliver a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered by
the Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering
of Securities pursuant to any Registration Statement, the Issuers shall
arrange, if necessary, for the registration or qualification of the
Securities or the Exchange Securities for sale under the laws of such
jurisdictions as any Holder shall reasonably request and shall maintain
such qualification in effect so long as required; provided that in no event
shall the Issuers be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the Initial Placement, the Registered Exchange Offer or any offering
pursuant to a Shelf Registration Statement,
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in any such jurisdiction where it is not then so subject or to subject
itself to taxation in excess of a nominal amount in respect of doing
business in such jurisdiction.
(j) The Issuers shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Exchange Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request in
writing at least three (3) Business Days prior to the closing date of any
sales of Exchange Securities.
(k) (i) Upon the occurrence of any event contemplated by
subsections (c) (ii) through (v) above, the Issuers shall promptly (or
within the time period provided for by clause (ii) hereof, if applicable)
prepare a post-effective amendment to the applicable Registration Statement
or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to the Initial Purchaser
of the Securities included therein, the Prospectus shall not include an
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 the light of the circumstances under which they were made, not
misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 hereof
shall be extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 4(c) hereof to and
including the date when the Initial Purchaser, the Holders of the
Securities and any known Exchanging Dealer shall have received such amended
or supplemented Prospectus pursuant to this Section 4(k).
(ii) Upon the occurrence or existence of any pending
corporate development or any other material event that, in the
reasonable judgment of the Issuers, makes it appropriate to suspend
the availability of a Shelf Registration Statement and the related
Prospectus, the Issuers shall give notice (without notice of the
nature or details of such events) to the Holders that the availability
of the Shelf Registration is suspended and, upon actual receipt of any
such notice, each Holder agrees not to sell any Registrable Securities
pursuant to the Shelf Registration until such Holder's receipt of
copies of the supplemented or amended Prospectus provided for in
Section 3(a)(i) hereof, or until it is advised in writing by the
Issuers that the Prospectus may be used, and has received copies of
any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The period during which
the availability of the Shelf Registration and any Prospectus is
suspended (the "DEFERRAL PERIOD") (1) shall not exceed 60 consecutive
days, (2) shall not occur more than three times during any calendar
year and (3) shall extend the number of days the Shelf Registration
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or any Prospectus is available by an amount equal to the Deferral
Period. Any Liquidated Damages payable pursuant to Section 8(a)(iii)
shall cease to accrue during any Deferral Period.
(l) Not later than the effective date of any Registration
Statement, the Issuers shall provide a CUSIP number and ISIN for the
Securities or the Exchange Securities, as the case may be, registered under
such Registration Statement, and provide the Trustee with printed
certificates for such Securities or Exchange Securities, in a form eligible
for deposit with The Depository Trust Company.
(m) The Issuers shall comply in all material respects with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders earnings statements satisfying the
provisions of Section 11(a) of the Act as soon as practicable after the
effective date of the applicable Registration Statement.
(n) The Issuers shall cause the Exchange Securities Indenture to
be qualified under the Trust Indenture Act as required by applicable law in
a timely manner.
(o) The Issuers may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of such Securities as
the Issuers may from time to time reasonably require for inclusion in such
Registration Statement. The Issuers may exclude from such Shelf
Registration Statement the Securities of any Holder that fails to furnish
such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, upon the
request of the Majority Holders, the Issuers shall enter into customary
agreements (including, if requested, one underwriting agreement in
customary form) and take all other appropriate actions, if any, as the
Majority Holders shall reasonably request in order to expedite or
facilitate the registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Issuers
shall:
(i) make reasonably available for inspection at a
location where they are normally kept and during normal business hours
by the Majority Holders of Securities to be registered thereunder, any
underwriter
14
participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by such
Holders or any such underwriter, all relevant financial and other
records and pertinent corporate documents of the Issuers and its
subsidiaries;
(ii) use its reasonable best efforts to cause its
officers, directors, employees, accountants and auditors to supply all
relevant information requested by the Holders or any such underwriter,
attorney, accountant or agent (each, an "INSPECTOR") in connection
with any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that such Inspector shall
first agree in writing with the Issuers that any information that is
reasonably and in good faith designated by the Issuers in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Inspector, unless (1) disclosure of such
information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (2)
disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in
connection with the filing of such Registration Statement or the use
of any Prospectus), (3) such information becomes generally available
to the public other than as a result of a disclosure or failure to
safeguard such information by such person or (4) such information
becomes available to such Inspector from a source other than the
Issuers and such source is not known, after due inquiry, by the
relevant Holder to be bound by a confidentiality agreement or is not
otherwise under a duty of trust to the Issuers;
(iii) make such representations and warranties to the
Holders of Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by issuer to
underwriters in primary underwritten offerings;
(iv) obtain opinions of counsel to the Issuers and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters;
(v) obtain "comfort" letters and updates thereof from
the independent certified public accountants of the Parent (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Parent or of any business acquired by the Parent for
which financial statements and
15
financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of
Securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"comfort" letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders or the Managing
Underwriters, if any, including those to evidence compliance with
Section 4(k) hereof and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Issuers.
(r) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Issuers (or to such other
person as directed by the Issuers) in exchange for the Exchange Securities,
the Issuers shall ▇▇▇▇, or caused to be marked, on the Securities so
exchanged that such Securities are being cancelled in exchange for the
Exchange Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
(s) The Issuers shall use their commercially reasonable best
efforts to take all other steps necessary to effect the registration of the
Securities or the Exchange Securities, as the case may be, covered by a
Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, shall reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
(which shall initially be ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, but which may be another
nationally recognized law firm experienced in securities matters designated by
the Majority Holders) to act as counsel for the Holders in connection therewith,
and, in the case of any Exchange Offer Registration Statement, shall reimburse
the Initial Purchaser for the reasonable fees and disbursements of counsel
acting in connection therewith, in each case which counsel shall be approved by
the Issuers (such approval not to be unreasonably withheld). Each Holder shall
pay all expenses of its counsel other than as set forth in the preceding
sentence, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Securities or Exchange
Securities.
6. Indemnification and Contribution.
(a) The Issuers agree, jointly and severally, to indemnify and
hold harmless each Holder of Securities or Exchange Securities, as the case
may be, covered by any Registration Statement, the Initial Purchaser and
each Affiliate thereof and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof,
16
each Exchanging Dealer, the directors, officers and Affiliates of each such
Holder, Initial Purchaser or Exchanging Dealer and each person who controls
any such Holder, Initial Purchaser or Exchanging Dealer within the meaning
of either the Act or the Exchange Act from and against any and all losses,
claims, damages and liabilities, joint or several, to which they or any of
them may become subject under Section 15 of the Act, Section 20 of the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein (in the case of any preliminary Prospectus or the Prospectus, in
the light of the circumstances under which they were made) not misleading,
and agree (subject to the limitations set forth in the proviso to this
sentence) to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Issuers shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Issuers by or on
behalf of the party claiming indemnification specifically for inclusion
therein; provided, further, that with respect to any such untrue statement
in or omission from the Preliminary Prospectus, the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of the
Initial Purchaser to the extent that the sale to the person asserting any
such loss, claim, damage or liability was an initial resale by the Initial
Purchaser and any such loss, claim, damage or liability of or with respect
to the Initial Purchaser results from the fact that both (i) a copy of the
Final Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (ii)
the untrue statement in or omission from such Preliminary Prospectus was
corrected in the Final Prospectus unless, in either case, such failure to
deliver the Final Prospectus was a result of non-compliance by the Issuers
with the provisions of Section 4 hereof. This indemnity agreement shall be
in addition to any liability that the Issuers may otherwise have. The
Issuers shall not be liable under this Section 6 to any indemnified party
regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to
17
such claim or action) unless such settlement, compromise or consent is
consented to by the Issuers, which consent shall not be unreasonably
withheld.
(b) Each Holder of securities covered by a Registration Statement
(including the Initial Purchaser that is a Holder, in such capacity)
severally and not jointly agrees to indemnify and hold harmless the Issuers
and each of its directors, each of its officers who signs such Registration
Statement and each person who controls the Issuers within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to each such Holder, but
only with reference to written information relating to such Holder
furnished to the Issuers by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement shall be in addition to any liability that any such
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the commencement thereof; but the failure to so notify the
indemnifying party (i) shall not relieve it from liability under paragraph
(a) or (b) of this Section 6 unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) of this Section 6. The indemnifying party shall be
entitled to appoint counsel (including local counsel) of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel, other than local counsel if
not appointed by the indemnifying party, retained by the indemnified party
or parties except as set forth below); provided, however, that such counsel
shall be reasonably satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel (including local
counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest (based on the advice of counsel to
the indemnified person), (ii) such action includes both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded (based on the advice of counsel to the indemnified
person) that there may be legal defenses available to it and/or other
indemnified parties that are
18
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is understood
and agreed that the indemnifying person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm (in
addition to any local counsel) for all indemnified persons. Any such
separate firm for the Initial Purchaser, its affiliates, directors and
officers and any control persons of the Initial Purchaser shall be
designated in writing by Banc of America Securities LLC and any such
separate firm for the Issuers and any control persons of the Issuers shall
be designated in writing by the Issuers. In the event that the Initial
Purchaser, its affiliates, directors and officers or any control persons of
the Initial Purchaser are Indemnified Persons collectively entitled, in
connection with a proceeding in a single jurisdiction, to the payment of
fees and expenses of a single separate firm under this Section 6(c), and
the Initial Purchaser, its affiliates, directors and officers or any
control persons of the Initial Purchaser cannot agree to a mutually
acceptable separate firm to act as counsel thereto, then such separate firm
for all such Indemnified Persons shall be designated in writing by Banc of
America Securities LLC. An indemnifying party shall not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding and does not include any statement as to, or any
concession of, fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending any loss,
claim, liability, damage or action) (collectively "LOSSES") to which such
indemnified party may be subject in such proportion as is appropriate to
reflect the relative benefits received by such indemnifying party, on the
one hand, and such indemnified party, on the other hand, from the Initial
Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall the Initial Purchaser be
responsible, in the aggregate, for any amount in excess of the purchase
discount or commission applicable to such Security, or in the
19
case of a Exchange Security, applicable to the Security that was
exchangeable into such Exchange Security, as set forth in the Purchase
Agreement, nor shall any underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the
securities purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason or not
permitted by applicable law, the indemnifying party and the indemnified
party shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Issuers shall be deemed to be equal to the total
net proceeds from the Initial Placement (before deducting expenses) as set
forth in the Final Memorandum. Benefits received by the Initial Purchaser
shall be deemed to be equal to the total purchase discounts and commissions
as set forth in the Purchase Agreement, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or
Exchange Securities, as applicable, registered under the Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of
the Prospectus forming a part of the Registration Statement which resulted
in such Losses. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information provided by the indemnifying party, on the one hand,
or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission and any other
equitable considerations appropriate in the circumstances. The parties
agree that it would not be just and equitable if the amount of such
contribution were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph 6(d),
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6(d), each person, if any, who controls a Holder within the
meaning of either the Act or the Exchange Act and each director and officer
of such Holder shall have the same rights to contribution as such Holder,
and each person who controls the Issuers within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, each officer of
the Issuers who shall have signed the Registration Statement and each
director of the Issuers shall have the same rights to contribution as the
Issuers, subject in each case to the applicable terms and conditions of
this paragraph 6(d).
20
(e) The provisions of this Section 6 shall remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Issuers or any of the indemnified persons referred to in this
Section 6, and shall survive the sale by a Holder of securities covered by
a Registration Statement.
7. Underwritten Registrations.
(a) If any of the Securities or Exchange Securities, as the case
may be, covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters, if any, shall be selected
by the Majority Holders, subject to the consent of the Issuers (which shall
not be unreasonably withheld), and the Holders of Securities or Exchange
Securities covered by such Shelf Registration Statement shall be
responsible for all underwriting commissions and discounts.
(b) No person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such person (i) agrees
to sell such person's Securities or Exchange Securities, as the case may
be, on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Registration Defaults.
(a) If any of the following events shall occur, then the Issuers
shall pay liquidated damages (the "LIQUIDATED DAMAGES") to the Holders of
Securities in respect of the Securities as follows:
(i) if (a) neither (x) the Registered Exchange Offer is
completed, nor (y) if required, the Shelf Registration Statement is
declared effective, within, in each case, 270 days of the Closing
Date, then Liquidated Damages shall accrue on the Registrable
Securities at a rate of 0.25% per annum on the principal amount of
such Registrable Securities for the first 90 days from and including
such specified date and increasing by an additional 0.25% per annum at
the beginning of each subsequent 90-day period thereafter; provided
that Liquidated Damages in the aggregate under this Section 8 may not
exceed 1.0% per annum of the principal amount of such Registrable
Securities; or
(ii) notwithstanding that the Issuers has consummated
or will consummate a Registered Exchange Offer, if the Issuers is
required to file a Shelf Registration Statement and such Shelf
Registration Statement is not declared effective on or prior to the
270th day following the date the filing of
21
such Shelf Registration Statement is required or requested pursuant to
Section 3(a), then Liquidated Damages shall accrue on the Registrable
Securities at a rate of 0.25% per annum of the principal amount of
such Registrable Securities for the first 90 days from and including
such specified date and increasing by an additional 0.25% per annum at
the beginning of each subsequent 90-day period thereafter; provided
that Liquidated Damages in the aggregate under this Section 8 may not
exceed 1.0% per annum of the principal amount of such Registrable
Securities; or
(iii) subject to the last sentence of Section 4(k)(ii)
above, if the Shelf Registration Statement required by Section 3(a) of
this Agreement has been declared effective but thereafter ceases to be
effective at any time at which it is required to be effective under
this Agreement and such failure to remain effective exists for more
than 30 consecutive days or more than 60 days (whether or not
consecutive) during the period for which the Shelf Registration
Statement is required, then commencing on the 31st day or 61st day, as
applicable, following the date on which such Shelf Registration
Statement ceases to be effective, Liquidated Damages shall accrue on
the Registrable Securities at a rate of 0.25% per annum of the
principal amount of such Registrable Securities for the first 90 days
from and including such 31st day or 61st day, as applicable, following
the date on which such Shelf Registration Statement ceases to be
effective and increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period thereafter; provided that
Liquidated Damages in the aggregate under this Section 8 may not
exceed 1.0% per annum of the principal amount of such Registrable
Securities;
provided, however, that upon (1) the completion of the Exchange Offer (in
the case of paragraph (i) above), (2) the effectiveness of the Shelf
Registration Statement (in the case of paragraph (ii) above) and (3) the
effectiveness of the Shelf Registration Statement which had ceased to
remain effective (in the case of paragraph (iii) above), Liquidated Damages
shall cease to accrue.
(b) The Issuers shall notify the Trustee in writing within one
Business Day after each and every date on which an event occurs in respect
of which Liquidated Damages are required to be paid and within one Business
Day after such Liquidated Damages cease to accrue. Any amounts of
Liquidated Damages due pursuant to paragraphs (i), (ii) or (iii) of this
Section 8(a) that accrues prior to October 1, 2009 shall be added to the
accreted value of each note, and all additional amounts that accrue
thereafter shall be payable in cash on each interest payment date specified
by the Indenture to the record holder entitled to receive the interest
payment to be made
22
on such date, commencing with the first such date occurring after any such
Liquidated Damages commences to accrue.
(c) The parties hereto agree that the liquidated damages in the
form of Liquidated Damages provided for in this Section 8 constitute a
reasonable estimate of and are intended to constitute the sole damages
payable under this Agreement that will be suffered by Holders of Securities
by reason of the failure of (i) the Registered Exchange Offer to be
completed; (ii) the Shelf Registration Statement, if required hereby, to be
declared effective, or (iii) the Shelf Registration Statement to remain
effective (and the prospectus contained therein to remain usable), in each
case to the extent required by this Agreement.
9. No Inconsistent Agreements. The Issuers has not entered into, and
agrees not to enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or that otherwise
conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not
be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Issuers has
obtained the written consent of the Holders of a majority of the aggregate
principal amount of the Registrable Securities outstanding; provided that, with
respect to any matter that directly or indirectly affects the rights and
obligations of the Initial Purchaser hereunder, the Issuers shall obtain the
written consent of the Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective; provided,
further, that no amendment, qualification, supplement, waiver or consent with
respect to Section 8 hereof shall be effective as against any Holder of
Registered Securities unless consented to in writing by such Holder; and
provided, further, that the provisions of this Article 10 may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Issuers has obtained the
written consent of the Initial Purchaser and each Holder. Notwithstanding the
foregoing (except the foregoing provisos), 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 or Exchange Securities, as the case may be,
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 the Majority
Holders, determined on the basis of Securities or Exchange Securities, as the
case may be, being sold rather than registered under such Registration
Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
23
(a) if to a Holder, at the most current address given by such
Holder to the Issuers in accordance with the provisions of this Section 11,
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar (as such term is defined in the
Indenture) under the Indenture;
(b) if to the Initial Purchaser, initially at the address or
addresses set forth in the Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchaser or the Issuers by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
12. Remedies. Each Holder, in addition to being entitled to exercise
all rights provided to it herein, in the Indenture or in the Purchase Agreement
or granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The Issuers
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by them of the provisions of this Agreement and
hereby agree to waive in any action for specific performance the defense that a
remedy at law would be adequate.
13. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their respective successors and
assigns, including, without the need for an express assignment or any consent by
the Issuers thereto, subsequent Holders of Securities and the Exchange
Securities, and the indemnified persons referred to in Section 6 hereof. The
Issuers hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
14. Counterparts. This Agreement may be signed in one or more
counterparts which may be delivered in original form or by telecopier, each of
which when so executed shall constitute an original and all of which together
shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
16. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be
24
performed in the State of New York. The parties hereto each hereby waive any
right to trial by jury in any action, proceeding or counterclaim arising out of
or relating to this Agreement.
17. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
18. Securities Held by any Issuers, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by the Issuers or their Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
[Signature pages follow.]
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement by and among
the Issuers and the Initial Purchaser.
Very truly yours,
CRYSTAL US HOLDINGS 3 L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Person
CRYSTAL US SUB 3 CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Person
Accepted as of the date hereof
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Managing Director
26
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it shall deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a Prospectus, a
broker-dealer shall not be deemed to admit that it is an "underwriter" within
the meaning of the Act. This prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
Exchange Securities received in exchange for Securities where such Securities
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuers have agreed that, for a period of 90 days
after consummation of the Registered Exchange Offer, they shall make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution".
A-1
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it shall deliver a Prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a Prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Issuers have
agreed that, for a period of 90 days after the consummation of the Registered
Exchange Offer, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until __________, 20___, all dealers effecting transactions in the
Exchange Securities may be required to deliver a Prospectus.
The Issuers will not receive any proceeds from any sale of Exchange
Securities by brokers-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers of
any such Exchange Securities. Any broker-dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Registered Exchange
Offer and any broker or dealer that participates in a distribution of such
Exchange Securities may be deemed to be an "underwriter" within the meaning of
the Act and any profit of any such resale of Exchange Securities and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Act. The Letter of Transmittal states that
by acknowledging that it will deliver and by delivering a Prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of 90 days after the consummation of the Registered
Exchange Offer, the Issuers will promptly send additional copies of this
Prospectus and any amendments or supplements to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Issuers have agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the holder of the Securities)
other than commissions or concessions of any brokers or dealers and will
indemnify the holders of the Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
C-1
ANNEX D
LANGUAGE TO BE INCLUDED IN LETTER OF TRANSMITTAL
1. PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: __________________________________
Address: _______________________________
_______________________________
2. If the undersigned is not a Broker-Dealer, the undersigned represents that
it acquired the Exchange Securities in the ordinary course of its business,
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities and it has no arrangements or understandings with any
person to participate in a distribution of the Exchange Securities. If the
undersigned is a Broker-Dealer that will receive Exchange Securities for
its own account in exchange for Securities, it represents that the
Securities to be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities and
acknowledges that it shall deliver a Prospectus in connection with any
resale of such Exchange Securities; however, by so acknowledging and by
delivering a Prospectus, the undersigned shall not be deemed to admit that
it is an "underwriter" within the meaning of the Act.
D-1
