Contract
EXECUTION
VERSION
$300,000,000
7.25%
Senior Notes due 2013
by
and among
Texas
Industries, Inc.,
The
Subsidiaries listed in Schedule A,
as
Guarantors
and
Banc
of America Securities LLC
UBS
Securities LLC
Wachovia
Capital Markets, LLC
Xxxxx
Fargo Securities, LLC
Comerica
Securities, Inc.
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
Dated
as of August 18, 2008
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of August 18, 2008, by and among Texas Industries,
Inc., a Delaware corporation (the “Company”),
the
Guarantors listed in Schedule A attached hereto (the “Guarantors”)
and
Banc of America Securities LLC, UBS Securities LLC, Wachovia Capital Markets,
LLC, Xxxxx Fargo Securities, LLC, Comerica Securities, Inc. and SunTrust
Xxxxxxxx Xxxxxxxx, Inc. (each an “Initial
Purchaser”
and,
collectively, the “Initial
Purchasers”),
each
of whom has agreed to purchase the Company’s $300,000,000 aggregate principal
amount of 7.25% Senior Notes due 2013 (the “Initial
Securities”)
pursuant to the Purchase Agreement (as defined below).
This
Agreement is made pursuant to the Purchase Agreement, dated as of August 7,
2008
(the “Purchase
Agreement”),
by
and among the Company, the Guarantors and the Initial Purchasers (i) for the
benefit of each Initial Purchaser and (ii) for the benefit of the holders from
time to time of the Securities (including each Initial Purchaser). In order
to
induce the Initial Purchasers to purchase the Initial Securities, the Company
has agreed to provide the registration rights set forth in this Agreement.
The
execution and delivery of this Agreement is a condition to the obligations
of
the Initial Purchasers set forth in Section 5 of the Purchase
Agreement.
The
parties hereby agree as follows:
Section
1. Definitions
As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
Advice:
As
defined in Section 6 hereof.
Broker-Dealer:
Any
broker or dealer registered with the Commission under the Exchange
Act.
Closing
Date:
The
date of this Agreement.
Commission:
The
United States Securities and Exchange Commission.
Consummate:
A
registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Securities to be issued in the Exchange Offer, (ii) the maintenance
of
such Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar under the Indenture of Exchange Securities in the same aggregate
principal amount as the aggregate principal amount of Initial Securities that
were tendered by Holders thereof pursuant to the Exchange Offer.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Exchange
Date:
As
defined in Section 3(a) hereto.
Exchange
Offer:
The
registration by the Company and the Guarantors under the Securities Act of
the
Exchange Securities and the guarantees thereof pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Securities
and
the guarantees thereof in an aggregate principal amount equal to the aggregate
principal amount of the Transfer Restricted Securities tendered in such exchange
offer by such Holders.
Exchange
Offer Registration Statement:
The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exchange
Securities:
The
$300,000,000 aggregate principal amount of 7.25% senior notes due 2013, of
the
same series under the Indenture as the Initial Securities and the guarantees
by
the Guarantors attached thereto, to be issued to Holders in exchange for
Transfer Restricted Securities pursuant to this Agreement.
Exempt
Resales:
The
transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain “qualified institutional buyers,” as such term is defined
in Rule 144A under the Securities Act, and to non-U.S. persons pursuant to
Regulation S under the Securities Act.
FINRA:
The
Financial Industry Regulatory Authority, Inc.
Freely
Tradable:
With
respect to a Security, a Security that at any time of determination (i) may
be
sold to the public in accordance with Rule 144 under the Securities Act
(“Rule
144”)
by a
person that is not an “affiliate” (as defined in Rule 144 under the Securities
Act) of the Company where no conditions of Rule 144 are then applicable (other
than the holding period requirement of paragraph (d) of Rule 144 so long as
such
holding period requirement is satisfied at such time of determination) and
(ii)
does not bear any restrictive legends relating to the Securities
Act.
Holder:
As
defined in Section 2(b) hereof.
Indemnified
Holder:
As
defined in Section 8(a) hereof.
Indenture:
The
indenture dated as of July 6, 2005 among the Company, the Guarantors and Xxxxx
Fargo Bank, National Association, as trustee (in such capacity, the
“Trustee”)
pursuant to which the Securities are to be issued, as such Indenture is amended
or supplemented from time to time in accordance with the terms
thereof.
Initial
Placement:
The
issuance and sale by the Company of the Initial Securities to the Initial
Purchasers pursuant to the Purchase Agreement.
Initial
Purchaser:
As
defined in the preamble hereto.
Initial
Securities:
The
7.25% Senior Notes due 2013, and the guarantees by the Guarantors attached
thereto, of the same series under the Indenture as the Exchange
Securities.
Liquidated
Damages:
As
defined in Section 5 hereof.
Person:
An
individual, partnership, corporation, trust or unincorporated organization,
or a
government or agency or political subdivision thereof.
Prospectus:
The
prospectus included in a Registration Statement, as amended or supplemented
by
any prospectus supplement or any free writing prospectus (as defined in Rule
405
of the Securities Act) and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into
such
Prospectus.
Purchase
Agreement:
As
defined in the preamble hereto.
Registrar:
As
defined in the Indenture.
Registration
Default:
As
defined in Section 5 hereof.
Registration
Statement:
Any
registration statement of the Company and the Guarantors relating to (a) an
offering of Exchange Securities and the related guarantees pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities and the related guarantees pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement, in
each
case, including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
2
Securities:
The
Initial Securities and the Exchange Securities, each individually, a
“Security”.
Securities
Act:
The
Securities Act of 1933, as amended.
Shelf
Filing Deadline:
As
defined in Section 4 hereof.
Shelf
Registration Statement:
As
defined in Section 4 hereof.
Trust
Indenture Act:
The
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa to 77bbbb) as in effect
on
the date of the Indenture.
Transfer
Restricted Security:
Each
Security, until the earliest to occur of (i) the date on which such Security
is
exchanged in the Exchange Offer and entitled to be resold to the public by
the
Holder thereof without complying with the prospectus delivery requirements
of
the Securities Act, (ii) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with a Shelf
Registration Statement, (iii) the date on which such Security ceases to be
outstanding and (iv) the date on which such Security is Freely
Tradable.
Underwritten
Registration
or
Underwritten
Offering:
A
registration in which securities of the Company are sold to an underwriter
for
reoffering to the public.
Section
2. Securities
Subject To This Agreement
(a) Transfer
Restricted Securities.
The
securities entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b) Holders
of Transfer Restricted Securities.
A
Person is deemed to be a holder of Transfer Restricted Securities (each, a
“Holder”)
whenever such Person owns Transfer Restricted Securities.
Section
3. Registered
Exchange Offer
(a) Unless
the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with), to the extent any Notes are not Freely Tradable as of the 375th
day
after the Closing Date (the “Exchange
Date”),
the
Company and the Guarantors shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission, (ii) use their reasonable best
efforts to cause such Registration Statement to become effective at the earliest
possible time, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary
in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Securities
to
be made under the state securities or blue sky laws of such jurisdictions as
are
necessary to permit Consummation of the Exchange Offer, (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer and
(v) use reasonable best efforts to Consummate the Exchange Offer. The Exchange
Offer, if required pursuant to this Section 3(a), shall be on the appropriate
form permitting registration of the Exchange Securities and the related
guarantees to be offered in exchange for the Transfer Restricted Securities
and
to permit resales of Securities held by Broker-Dealers as contemplated by
Section 3(c) below.
3
(b) If
an
Exchange Offer Registration Statement is required to be filed and declared
effective pursuant to Section 3(a) above, the Company and the Guarantors shall
use their reasonable best efforts to cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however,
that in
no event shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company and the Guarantors shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Securities shall be included
in
the Exchange Offer Registration Statement. The Company and the Guarantors shall
use their reasonable best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than the Exchange Date; provided,
however,
that
the Company and the Guarantors shall not be required to Consummate the Exchange
Offer if all the Securities are Freely Tradable on or before the Exchange
Date.
(c) The
Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that
any
Broker-Dealer who holds Initial Securities that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an “underwriter” within the meaning of the Securities Act (a
“Participating
Broker-Dealer”)
and
must, therefore, deliver a prospectus meeting the requirements of the Securities
Act in connection with any resales of the Exchange Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement
may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such “Plan of Distribution”
section shall also contain all other information with respect to such resales
by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such “Plan of Distribution” shall not name any such
Broker-Dealer or disclose the amount of Securities held by any such
Broker-Dealer except to the extent required by the Commission as a result of
a
change in policy after the date of this Agreement.
The
Company and the Guarantors shall use their reasonable best efforts to keep
the
Exchange Offer Registration Statement continuously effective, supplemented
and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Securities and related
guarantees acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period ending on the earlier of (i) 180 days from the date on which
the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus
in
connection with market-making or other trading activities and (iii) the date
on
which all resales of Exchange Securities covered by such Exchange Offer
Registration Statement have been made.
The
Company and the Guarantors shall provide sufficient copies of the latest version
of such Prospectus to Broker-Dealers promptly upon request at any time during
such 180-day (or shorter as provided in the foregoing sentence) period in order
to facilitate such resales.
Notwithstanding
anything in this Section 3 to the contrary, the requirements to file the
Exchange Offer Registration Statement and the requirements to Consummate the
Exchange Offer shall terminate at such time as all the Securities are Freely
Tradable.
Section
4. Shelf
Registration
(a) Shelf
Registration.
If (i)
the Company is not required to file an Exchange Offer Registration Statement
or
to Consummate the Exchange Offer because the Exchange Offer is not permitted
by
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), (ii) for any reason the Exchange Offer
is
not Consummated by the Exchange Date and the Securities are not all Freely
Tradable on or prior to such time, or (iii) any Holder of Transfer Restricted
Securities shall notify the Company in writing that (A) such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, (B) such Holder may not resell the Exchange Securities acquired
by it in the Exchange Offer to the public without delivering a prospectus and
that the Prospectus contained in the Exchange Offer Registration Statement
is
not appropriate or available for such resales by such Holder, or (C) such Holder
is a Broker-Dealer and holds Initial Securities acquired directly from the
Company or one of its affiliates, then, upon such Holder’s request, the Company
and the Guarantors shall:
4
(x)
cause
to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the “Shelf
Registration Statement”)
on or
prior to the 30th
day
after the date such obligation arises (but no earlier than the Exchange Date)
(such date being the “Shelf
Filing Deadline”),
which
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the information
required pursuant to Section 4(b) hereof; and
(y)
use
their reasonable best efforts to cause such Shelf Registration Statement to
be
declared effective by the Commission on or before the 60th
day
after the Shelf Filing Deadline.
The
Company and the Guarantors shall use their reasonable best efforts to keep
such
Shelf Registration Statement continuously effective, supplemented and amended
as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Transfer Restricted
Securities by the Holders thereof entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the
effective date of such Shelf Registration Statement (or shorter period that
will
terminate when all the Securities covered by such Shelf Registration Statement
have been sold pursuant to such Shelf Registration Statement) or are Freely
Tradable. Notwithstanding
anything to the contrary, the requirements to file a Shelf Registration
Statement and to have such Shelf Registration Statement become effective and
remain effective shall terminate at such time as all of the Securities are
Freely Tradable
(b) Provision
by Holders of Certain Information in Connection with the Shelf Registration
Statement.
No
Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing,
within 20 business days after receipt of a request therefor, such information
as
the Company may reasonably request (including, without limitation, the
information specified in Items 507 or 508 of Regulation S-K of the Securities
Act) for use in connection with any Shelf Registration Statement or Prospectus
or preliminary Prospectus included therein. By acquiring the Initial Securities,
each Holder agrees to provide the indemnity set forth in Section 8(b) hereof
with respect to the information such Holder furnishes to the Company in writing
expressly for use in any Shelf Registration Statement. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly
to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
Section
5. Liquidated
Damages
If
any of
the Securities are not Freely Tradable by the Exchange Date and either (i)
the
Exchange Offer has not been Consummated on or prior to the Exchange Date, (ii)
the Shelf Registration Statement is not filed with the Commission on or prior
to
the date specified for such filing in this Agreement, (iii) the Shelf
Registration Statement has not been declared effective by the Commission on
or
prior to the date specified for such effectiveness in this Agreement, (iv)
any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a “Registration
Default”),
the
Company hereby agrees that the interest rate borne by the Transfer Restricted
Securities held by each Holder shall be increased by 0.25% per annum on the
principal amount of such Transfer Restricted Securities during the 90-day period
immediately following the occurrence of the Registration Default and shall
increase by 0.25% per annum on such principal amount each subsequent 90-day
period, but in no event shall such increase exceed 1.00% per annum (any such
interest assessed upon the occurrence of a Registration Default is referred
to
as “Liquidated
Damages”).
Following the earlier of (x) the cure of all Registration Defaults relating
to
any particular Transfer Restricted Securities and (y) the Transfer Restricted
Securities having become Freely Tradable, the interest rate borne by the
relevant Transfer Restricted Securities shall be reduced to the original
interest rate borne by such Transfer Restricted Securities; provided,
however,
that,
if after any such reduction in interest rate, a different Registration Default
occurs, the interest rate borne by the relevant Transfer Restricted Securities
shall again be increased pursuant to the foregoing provisions.
5
All
obligations of the Company and the Guarantors set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Security
shall have been satisfied in full.
Section
6. Registration
Procedures
(a) Exchange
Offer Registration Statement.
In
connection with the Exchange Offer, if required pursuant to Section 3(a) hereof,
the Company and the Guarantors shall comply with all of the provisions of
Section 6(c) below, shall use their reasonable best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities and related
guarantees being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with the following
provisions:
(i) If
in the
reasonable opinion of counsel to the Company there is a question as to whether
the Exchange Offer is permitted by applicable law, the Company and the
Guarantors hereby agree to seek a no-action letter or other favorable decision
from the Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Initial Securities. The Company and the Guarantors
hereby agree to pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially unreasonable action to
effect a change of Commission policy. Each of the Company and the Guarantors
hereby agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by counsel
to the Company setting forth the legal bases, if any, upon which such counsel
has concluded that such an Exchange Offer should be permitted, and
(C) diligently pursue a favorable resolution by the Commission staff of
such submission.
(ii) As
a
condition to its participation in the Exchange Offer pursuant to the terms
of
this Agreement, each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate (as defined in Rule 405 under the
Securities Act) of the Company, (B) it is not engaged in, and does not intend
to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Securities to be issued in the
Exchange Offer, (C) it is acquiring the Exchange Securities in its ordinary
course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company’s preparations for the
Exchange Offer, (D) at the time of the commencement of the Exchange Offer,
such
Holder will have no arrangement or understanding with any Person to participate
in the distribution (within the meaning of the Securities Act) of the Exchange
Securities in violation of the provisions of the Securities Act, and (E) if
such
Holder is a Participating Broker Dealer that will receive Exchange Securities
for its own account in exchange for Transfer Restricted Securities that were
acquired as a result of market-making or other trading activities, that it
will
deliver a Prospectus in connection with any resale of such Exchange Securities.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the
Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon
Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993, and similar no-action letters (which may
include any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction and that such
a
secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Securities obtained by such Holder in exchange for Initial Securities acquired
by such Holder directly from the Company.
6
(b) Shelf
Registration Statement.
In
connection with the Shelf Registration Statement, if required pursuant to
Section 4 hereof, the Company and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their reasonable best efforts
to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company and the Guarantors will
as expeditiously as possible prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Transfer
Restricted Securities and related guarantees in accordance with the intended
method or methods of distribution thereof.
(c) General
Provisions.
In
connection with any Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted Securities and
related guarantees (including, without limitation, any Registration Statement
and the related Prospectus required to permit resales of Securities by
Broker-Dealers), the Company shall:
(i) use
its
reasonable best efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements (including, if required
by the Securities Act or any regulation thereunder, financial statements of
any
Guarantor) for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities and related guarantees during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, in the case of clause
(A),
correcting any such misstatement or omission, and, in the case of either clause
(A) or (B), use its reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus
to
become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare
and file with the Commission such amendments and post-effective amendments
to
the Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as will terminate when all
Transfer Restricted Securities and related guarantees covered by such
Registration Statement have been sold or are Freely Tradable; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as
so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and
to
comply fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in
such Registration Statement or supplement to the Prospectus;
7
(iii) advise
the underwriter(s), if any, and selling Holders promptly and, if requested
by
such Persons, to confirm such advice in writing, (A) when the Prospectus or
any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities or related guarantees for offering or sale in any jurisdiction,
or
the initiation of any proceeding for any of the preceding purposes, (D) of
the
existence of any fact or the happening of any event that makes any statement
of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities and related guarantees under state securities or Blue
Sky
laws, the Company and the Guarantors shall use their reasonable best efforts
to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish
without charge to each of the Initial Purchasers, each selling Holder named
in
any Registration Statement, and each of the underwriter(s), if any, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by
reference after the initial filing of such Registration Statement), which
documents will be subject to the review of such Holders and underwriter(s)
in
connection with such sale, if any, for a period of at least five business days,
and the Company will not file any such Registration Statement or Prospectus
or
any amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which an Initial
Purchaser of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably object in writing
within five business days after the receipt thereof (such objection to be deemed
timely made upon confirmation of telecopy transmission within such period).
The
objection of an Initial Purchaser or underwriter, if any, shall be deemed to
be
reasonable if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein not misleading;
(v) promptly
prior to the filing of any document that is to be incorporated by reference
into
a Registration Statement or Prospectus (other than documents filed prior to
the
filing of the Registration Statement) , provide copies of such document to
the
Initial Purchasers, each selling Holder named in any Registration Statement,
and
to the underwriter(s), if any, make the Company’s representatives available and
representatives of the Guarantors for discussion of such document and other
customary due diligence matters, and include such information in such document
prior to the filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make
available at reasonable times for inspection by the Initial Purchasers, each
selling Holder, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant retained
by such Initial Purchasers, managing underwriter or any of the underwriter(s),
all financial and other records, pertinent corporate documents and properties
of
the Company and the Guarantors and cause the Company’s and the Guarantors’
officers, directors and employees to supply all information reasonably requested
by any such Holder, underwriter, attorney or accountant in connection with
such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vii) if
requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the
“Plan of Distribution” of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being sold
to
such underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified
of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
8
(viii) cause
the
Transfer Restricted Securities covered by the Registration Statement to be
rated
with the appropriate rating agencies, if the Transfer Restricted Securities
have
not otherwise been rated, if so requested by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities covered thereby
or the underwriter(s), if any;
(ix) furnish
to each selling Holder and each of the underwriter(s), if any, without charge,
at least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including financial statements and
schedules, all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver
to each selling Holder and each of the underwriter(s), if any, without charge,
as many copies of the Prospectus (including each preliminary prospectus) and
any
amendment or supplement thereto as such Persons may reasonably request; the
Company and the Guarantors hereby consent to the use of the Prospectus and
any
amendment or supplement thereto by each of the selling Holders and each of
the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities and related guarantees covered by the Prospectus
or any amendment or supplement thereto;
(xi) enter
into, and cause the Guarantors to enter into, such agreements (including an
underwriting agreement), and make, and cause the Guarantors to make, such
representations and warranties that are customary in such transactions and
take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities and related
guarantees pursuant to any Registration Statement contemplated by this
Agreement, all to such extent as may be reasonably requested by any Holder
of
Transfer Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this Agreement;
and whether or not an underwriting agreement is entered into and whether or
not
the registration is an Underwritten Registration, the Company and the Guarantors
shall:
(1) furnish
to each selling Holder and each underwriter, if any, in such substance and
scope
as they may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of the
Consummation of the Exchange Offer and, if applicable, the effectiveness of
the
Shelf Registration Statement:
(A) a
certificate, dated the date of Consummation of the Exchange Offer or the date
of
effectiveness of the Shelf Registration Statement, as the case may be, signed
by
(y) the President or any Vice President and (z) a principal financial or
accounting officer of each of the Company and the Guarantors, confirming, as
of
the date thereof, the matters set forth in paragraphs (i), (ii) and (iii) of
Section 5(f) of the Purchase Agreement, and such other matters as such parties
may reasonably request;
9
(B) opinions,
dated the date of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the case may be, of
outside counsel for the Company and general counsel for the Company and the
Guarantors, covering the matters set forth in Sections 5(c) and (d) of the
Purchase Agreement and such other matters as such parties may reasonably
request, and in any event including a statement to the effect that each such
counsel has participated in conferences with officers and other representatives
of the Company, representatives of the independent public accountants for the
Company, the Initial Purchasers’ representatives and the Initial Purchasers’
counsel in connection with the preparation of such Registration Statement and
the related Prospectus and have considered the matters required to be stated
therein and the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the foregoing
(relying as to materiality to a large extent upon facts provided to such counsel
by officers and other representatives of the Company and without independent
check or verification), no facts came to such counsel’s attention that caused
such counsel to believe that the applicable Registration Statement, at the
time
such Registration Statement or any post-effective amendment thereto became
effective, and, in the case of the Exchange Offer Registration Statement, as
of
the date of Consummation, contained an untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, or that the Prospectus contained
in
such Registration Statement as of its date and, in the case of the opinion
dated
the date of Consummation of the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Without limiting
the
foregoing, each such counsel may state further that each such counsel assumes
no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and schedules and
other financial data included in any Registration Statement contemplated by
this
Agreement or the related Prospectus; and
(C) a
customary comfort letter, dated as of the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement, as
the
case may be, from the Company’s independent accountants, in the customary form
and covering matters of the type customarily covered in comfort letters by
underwriters in connection with primary underwritten offerings, and affirming
the matters set forth in the comfort letters delivered pursuant to Section
5(a)
of the Purchase Agreement, without exception;
(2) set
forth
in full or incorporate by reference in the underwriting agreement, if any,
the
indemnification provisions and procedures of Section 8 hereof with respect
to
all parties to be indemnified pursuant to said Section; and
(3) deliver
such other documents and certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company or the Guarantors pursuant to this clause (xi), if
any.
If
at any
time the representations and warranties of the Company and the Guarantors
contemplated in this clause (xi) cease to be true and correct, the Company
or
the Guarantors shall so advise the Initial Purchasers and the underwriter(s),
if
any, and each selling Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;
(xii) prior
to
any public offering of Transfer Restricted Securities, cooperate with, and
cause
the Guarantors to cooperate with, the selling Holders, the underwriter(s),
if
any, and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities and related guarantees
under
the securities or Blue Sky laws of such jurisdictions as the selling Holders
or
underwriter(s) may request and do any and all other acts or things necessary
or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities and related guarantees covered by the Shelf Registration
Statement; provided,
however,
that
the Company and the Guarantors shall not be required to register or qualify
as a
foreign corporation where they are not then so qualified or to take any action
that would subject them to the service of process in suits or to taxation,
other
than as to matters and transactions relating to the Registration Statement,
in
any jurisdiction where they are not then so subject;
10
(xiii) shall
issue, upon the request of any Holder of Initial Securities covered by the
Shelf
Registration Statement, Exchange Securities guaranteed by the Guarantors and
having an aggregate principal amount equal to the aggregate principal amount
of
Initial Securities surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Securities to be registered
in the name of such Holder or in the name of the purchaser(s) of such
Securities, as the case may be; in return, the Initial Securities held by such
Holder shall be surrendered to the Company for cancellation;
(xiv) cooperate
with, and cause the Guarantors to cooperate with, the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the Holders or
the
underwriter(s), if any, may request at least two business days prior to any
sale
of Transfer Restricted Securities made by such underwriter(s);
(xv) use
its
reasonable best efforts to cause the Transfer Restricted Securities and the
guarantees thereof covered by the Registration Statement to be registered with
or approved by such other U.S. federal, state or local governmental agencies
or
authorities as may be necessary to enable the seller or sellers thereof or
the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above;
(xvi) if
any
fact or event contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(xvii) cooperate
and assist in any filings required to be made with the FINRA and in the
performance of any due diligence investigation by any underwriter (including
any
“qualified independent underwriter”) that is required to be retained in
accordance with the rules and regulations of the FINRA, and use its reasonable
best efforts to cause such Registration Statement to become effective and
approved by such U.S. federal, state or local governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer Restricted
Securities
(xviii) provide
a
CUSIP number for all Transfer Restricted Securities not later than the effective
date of the Registration Statement and provide the Trustee under the Indentures
with printed certificates for the Transfer Restricted Securities which are
in a
form eligible for deposit with The Depositary Trust Company;
(xix) otherwise
use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings statement meeting
the
requirements of Rule 158 (which need not be audited) for the twelve-month period
(A) commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts Underwritten
Offering or (B) if not sold to underwriters in such an offering, beginning
with
the first month of the Company’s first fiscal quarter commencing after the
effective date of the Registration Statement;
11
(xx) cause
the
Indenture to be qualified under the Trust Indenture Act not later than the
effective date of the first Registration Statement required by this Agreement,
and, in connection therewith, cooperate, and cause the Guarantors to cooperate
with, the Trustee and the Holders of Securities to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance
with the terms of the Trust Indenture Act; and to execute and use its reasonable
best efforts to cause the Trustee to execute, and cause the Guarantors to
execute, all documents that may be required to effect such changes and all
other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner;
(xxi) cause
all
Transfer Restricted Securities covered by the Registration Statement to be
listed on each securities exchange on which similar securities issued by the
Company are then listed if requested by the Holders of a majority in aggregate
principal amount of Initial Notes or the managing underwriter(s), if any;
(xxii) provide
promptly to each Holder upon request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of the Exchange Act;
and
(xxiii) shall
not, without the prior written consent of the Initial Purchasers, make any
offer
relating to the Securities that would constitute a free writing prospectus,
as
defined in Rule 405 of the Securities Act
(d) Restrictions
on Holders.
Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice from the Company of the existence of any fact of the
kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or
until it is advised in writing (the “Advice”)
by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference
in
the Prospectus. If so directed by the Company, each Holder will deliver to
the
Company (at the Company’s expense) all copies, other than permanent file copies
then in such Holder’s possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such notice.
In
the event the Company shall give any such notice, the time period regarding
the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof
or
shall have received the Advice; however, no such extension shall be taken into
account in determining whether Liquidated Damages are due pursuant to Section
5
hereof or the amount of such Liquidated Damages, it being agreed that the
Company’s option to suspend use of a Registration Statement pursuant to this
paragraph shall be treated as a Registration Default for purposes of Section
5.
Section
7. Registration
Expenses
(a) All
expenses incident to the Company’s and the Guarantors’ performance of or
compliance with this Agreement will be borne by the Company and the Guarantors,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the FINRA (and, if
applicable, the fees and expenses of any “qualified independent underwriter” and
its counsel that may be required by the rules and regulations of the FINRA));
(ii) all fees and expenses of compliance with federal securities and state
Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Securities to be issued in the Exchange Offer
and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company, the Guarantors and,
subject to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the Exchange
Securities on a national securities exchange or automated quotation system
pursuant to the requirements thereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by
or
incident to such performance).
12
The
Company will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees
and
expenses of any Person, including special experts, retained by the
Company.
(b) In
connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and
the Shelf Registration Statement), the Company will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being tendered
in
the Exchange Offer and/or resold pursuant to the “Plan of Distribution”
contained in the Exchange Offer Registration Statement or registered pursuant
to
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Shearman & Sterling
LLP or such other counsel as may be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
Section
8. Indemnification
(a) The
Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each person, if any, who controls (within
the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any Holder (any of the persons referred to in this clause (ii) being hereinafter
referred to as a “controlling
person”)
and
(iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder or any controlling person (any person referred to
in
clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified
Holder”),
to
the fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation
and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, or arising out of or in connection with any untrue statement
or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (or any amendment or supplement thereto), or any free
writing prospectus (as defined in Rule 405 of the Securities Act), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities, judgments, actions
or expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company
by any of the Holders expressly for use therein. This indemnity agreement shall
be in addition to any liability which the Company and the Guarantors may
otherwise have
In
case
any action or proceeding (including any governmental or regulatory investigation
or proceeding) shall be brought or asserted against any of the Indemnified
Holders with respect to which indemnity may be sought against the Company or
the
Guarantors, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company and the Guarantors
in
writing (provided,
however,
that
the failure to give such notice shall not relieve the Company or the Guarantors
of their respective obligations pursuant to this Agreement unless and only
to
the extent that the Company or the Guarantors are materially prejudiced by
such
failure). Such Indemnified Holder shall have the right to employ its own counsel
in any such action and the fees and expenses of such counsel shall be paid,
as
incurred, by the Company and the Guarantors (regardless of whether it is
ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). The Company and the Guarantors shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising
out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition
to
any local counsel) at any time for such Indemnified Holders, which firm shall
be
designated by the Holders. The Company shall be liable for any settlement of
any
such action or proceeding effected with the Company’s prior written consent,
which consent shall not be withheld unreasonably, and the Company agrees to
indemnify and hold harmless any Indemnified Holder from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Company. The
Company shall not, without the prior written consent of each Indemnified Holder,
settle or compromise or consent to the entry of judgment in or otherwise seek
to
terminate any pending or threatened action, claim, litigation or proceeding
in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional release
of each Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding.
13
(b) Each
Holder of Transfer Restricted Securities agrees, severally and not jointly,
to
indemnify and hold harmless the Company and the Guarantors and their respective
directors, officers of the Company who sign a Registration Statement, and any
person controlling (within the meaning of Section 15 of the Securities Act
or
Section 20 of the Exchange Act) the Company, and the respective officers,
directors, partners, employees, representatives and agents of each such person,
to the same extent as the foregoing indemnity from the Company and the
Guarantors to each of the Indemnified Holders, but only with respect to claims
and actions based on information relating to such Holder furnished in writing
by
such Holder expressly for use in any Registration Statement. In case any action
or proceeding shall be brought against the Company or its directors or officers
or any such controlling person in respect of which indemnity may be sought
against a Holder of Transfer Restricted Securities, such Holder shall have
the
rights and duties given the Company and the Company or its directors or officers
or such controlling person shall have the rights and duties given to each Holder
by the preceding paragraph. In no event shall the liability of any selling
Holder hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Securities giving rise to such
indemnification obligation.
(c) If
the
indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or Section 8(b) hereof (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders, on the other
hand,
from the Initial Placement (which in the case of the Company shall be deemed
to
be equal to the total net proceeds from the Initial Placement received by the
Company and the Guarantors), the amount of Liquidated Damages which did not
become payable as a result of the filing of the Registration Statement resulting
in such losses, claims, damages, liabilities, judgments actions or expenses,
and
such Registration Statement, or if such allocation is not permitted by
applicable law, the relative fault of the Company and the Guarantors, on the
one
hand, and of the Indemnified Holder, on the other hand, in connection with
the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors, on the one hand, and
of
the Indemnified Holder, on the other, shall be determined by reference to,
among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Indemnified Holder and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by
a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating
or
defending any action or claim.
14
The
Company, the Guarantors and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(c) were determined by pro rata allocation (even if the Holders were treated
as
one entity for such purpose) or by any other method of allocation which does
not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a
result of the losses, claims, damages, liabilities or expenses referred to
in
the immediately preceding paragraph shall be deemed to include, subject to
the
limitations set forth above, any legal or other expenses reasonably incurred
by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Xxxxxxx 0, xxxx of
the
Holders (and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the dollar amount by which the total
discount received by any such Holder with respect to the Initial Securities
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective principal amount of
Initial Securities held by each of the Holders hereunder and not
joint.
Section
9. Rule
144A
The
Company and the Guarantors each hereby agrees with each Holder, for so long
as
any Transfer Restricted Securities remain outstanding, and during any period
the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available to any Holder or beneficial owner of Transfer Restricted Securities
in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15(d) of the Exchange Act, to make all filings required
thereunder in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
Section
10. Participation
In Underwritten Registrations
No
Holder
may participate in any Underwritten Registration hereunder unless such Holder
(a) agrees to sell such Holder’s Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such
underwriting arrangements.
Section
11. Selection
Of Underwriters
The
Holders of Transfer Restricted Securities covered by the Shelf Registration
Statement who desire to do so may sell such Transfer Restricted Securities
in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount
of
the Transfer Restricted Securities included in such offering; provided,
that
such investment bankers and managers must be reasonably satisfactory to the
Company.
Section
12. Miscellaneous
(a) Remedies.
The
Company and the Guarantors hereby agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of
the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No
Inconsistent Agreements.
The
Company will not, and will cause the Guarantors not to, on or after the date
of
this Agreement, enter into any agreement with respect to its securities that
is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Neither the Company nor the
Guarantors have entered into any agreement granting any registration rights
with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company’s securities under any agreement in
effect on the date hereof.
15
(c) Adjustments
Affecting the Securities.
The
Company will not take any action, or permit any change to occur, with respect
to
the Securities that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) Amendments
and Waivers.
The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to or departures from the provisions hereof may not be
given
unless the Company has obtained the written consent of Holders of a majority
of
the outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does
not
affect directly or indirectly the rights of other Holders whose securities
are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities being tendered or registered; provided that, with respect to any
matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial
Purchaser with respect to which such amendment, qualification, supplement,
waiver, consent or departure is to be effective.
(e) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), facsimile, or air courier guaranteeing overnight
delivery:
(i) if
to a
Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if
to the
Company and the Guarantors:
Texas
Industries, Inc.
0000
Xxxx
Xxxxxxxxxxx Xxxx
Xxxxxx,
Xxxxx 00000
Attention:
General Counsel
with
a
copy to:
Xxxxxxxx
& Xxxxxx LLP
0000
Xxxxx Xxxxxx
Xxxxx
0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxx Xxxxxxxxxxx
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if
facsimiled; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies
of
all such notices, demands or other communications shall be concurrently
delivered by the Person giving the same to the Trustee at the address specified
in the Indenture.
(f) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer Restricted
Securities; provided,
however,
that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
16
(h) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i) GOVERNING
LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK.
(j) Severability.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(k) Entire
Agreement.
This
Agreement together with the Purchase Agreement and the DTC Agreement, the
Securities, and the Indenture (each as defined in the Purchase Agreement) is
intended by the parties as a final expression of their agreement and intended
to
be a complete and exclusive statement of the agreement and understanding of
the
parties hereto in respect of the subject matter contained herein. There are
no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
17
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first written
above.
TEXAS
INDUSTRIES, INC.
|
||
By:
|
/s/Xxxxxxx
X. Xxxxx
|
|
Name:
Xxxxxxx X. Xxxxx
|
||
Title:
Vice President, Finance and Chief Financial
Officer
|
BROOKHOLLOW
CORPORATION
|
||
BROOK
HOLLOW PROPERTIES, INC.
|
||
BROOKHOLLOW
OF ALEXANDRIA, INC.
|
||
BROOKHOLLOW
OF VIRGINIA, INC.
|
||
SOUTHWESTERN
FINANCIAL CORPORATION
|
||
CREOLE
CORPORATION
|
||
PACIFIC
CUSTOM MATERIALS, INC.
|
||
RIVERSIDE
CEMENT COMPANY
|
||
XXXXXX
LIMESTONE PRODUCTS, INC.
|
||
RIVERSIDE
CEMENT HOLDINGS COMPANY
|
||
TXI
AVIATION, INC.
|
||
TXI
CALIFORNIA INC.
|
||
TXI
CEMENT COMPANY
|
||
TXI
POWER COMPANY
|
||
TXI
RIVERSIDE INC.
|
||
TXI
TRANSPORTATION COMPANY
|
||
By:
|
/s/Xxxxxxx
X. Xxxxx
|
|
Authorized
Officer
|
TEXAS
INDUSTRIES HOLDINGS, LLC
|
||
TEXAS
INDUSTRIES TRUST
|
||
TXI
LLC
|
||
TXI
OPERATING TRUST
|
||
By:
|
/s/Xxxxxxx
X. Xxxxx
|
|
Authorized
Officer
|
||
TXI
OPERATIONS, LP
|
||
By:
TXI Operating Trust, its general partner
|
||
By:
|
/s/Xxxxxxx
X. Xxxxx
|
|
Authorized
Officer
|
The
foregoing Registration Rights Agreement is hereby confirmed and accepted as
of
the date first above written.
BANC
OF
AMERICA SECURITIES LLC
UBS
SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
XXXXX
FARGO SECURITIES, LLC
COMERICA
SECURITIES, INC.
SUNTRUST
XXXXXXXX XXXXXXXX, INC.
By:
BANC
OF
AMERICA SECURITIES LLC
By:
|
/s/Xxxx
X. Xxxx
|
|
Name:
Xxxx X. Xxxx
|
||
Title:
Managing Director
|
SCHEDULE
A
LIST
OF GUARANTORS
Brookhollow
Corporation
Brook
Hollow Properties, Inc.
Brookhollow
of Alexandria, Inc.
Brookhollow
of Virginia, Inc.
Southwestern
Financial Corporation
Creole
Corporation
Pacific
Custom Materials, Inc.
Riverside
Cement Company
Xxxxxx
Limestone Products, Inc.
Riverside
Cement Holdings Company
Texas
Industries Holdings, LLC
Texas
Industries Trust
TXI
Aviation, Inc.
TXI
California Inc.
TXI
Cement Company
TXI
LLC
TXI
Operating Trust
TXI
Operations, LP
TXI
Power
Company
TXI
Riverside Inc.
TXI
Transportation Company