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Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 2, 2001
among
CENTURY ALUMINUM COMPANY,
the GUARANTORS party hereto
and
CREDIT SUISSE FIRST BOSTON CORPORATION, and
FLEET SECURITIES, INC.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made and
entered into as of April 2, 2001, among CENTURY ALUMINUM COMPANY, a Delaware
corporation (the "COMPANY"), each of the GUARANTORS party hereto (the
"GUARANTORS") and CREDIT SUISSE FIRST BOSTON CORPORATION and FLEET SECURITIES,
INC. (the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated March
28, 2001, among the Company, the Guarantors and the Initial Purchasers (the
"PURCHASE AGREEMENT"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $325,000,000 principal amount of the Company's
11.75% Senior Secured First Mortgage Notes due 2008 (the "SECURITIES"). The
Notes will be unconditionally and irrevocably guaranteed (the "GUARANTEES") as
to payment of principal, premium, if any, and interest by the Guarantors and
shall be secured by a pledge of certain plant, property and equipment of the
Company and the Guarantors. In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Company and the Guarantors have agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
by the Company and the Guarantors is a condition to the closing under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"BLOCKAGE NOTICE" shall have the meaning set forth in Section 3 hereof.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
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"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean securities issued by the Company under
the Indenture and guaranteed by the Guarantors containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Securities (or if authenticated between a record
date and interest payment date, from such interest payment date) or, if no such
interest has been paid, from April 2, 2001, (ii) the Exchange Securities will be
registered under the 1933 Act and will not contain restrictions on transfer and
(iii) the provisions relating to additional interest will be eliminated) and to
be offered to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"GUARANTORS" shall mean the Guarantors listed on the signature pages
hereof, and shall also include any successor to a Guarantor.
"HOLDER" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture; provided that for purposes of Sections 4 and 5
of this Agreement, the term "HOLDER" shall include Participating Broker-Dealers
(as defined in Section 4(a)).
"INDENTURE" shall mean the Indenture relating to the Securities dated
as of April 2, 2001 among the Company, the Guarantors party thereto and
Wilmington Trust Company, as trustee, and as the same may be amended from time
to time in accordance with the terms thereof.
"INITIAL PURCHASERS " shall have the meaning set forth in the preamble.
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"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company, the Guarantors or any of their affiliates (as such term is defined in
Rule 405 under the 0000 Xxx) (other than the Initial Purchasers or subsequent
Holders of Registrable Securities if such subsequent holders are deemed to be
such affiliates solely by reason of their holding of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" shall mean the Securities (including the
Guarantees); provided, however, that the Securities shall cease to be
Registrable Securities (i) when a Registration Statement with respect to such
Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Registration Statement,
(ii) when such Securities have been sold to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the 1933 Act
or (iii) when such Securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors with this
Agreement, including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable and documented fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Exchange Securities or Registrable Securities),
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and
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distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and the Guarantors and, in the case of
a Shelf Registration Statement, the reasonable and documented fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the independent public
accountants of the Company and the Guarantors, including the expenses of any
special audits or "COLD COMFORT" letters required by or incident to such
performance and compliance, but excluding fees and expenses of counsel to the
underwriters (other than fees and expenses set forth in clause (ii) above) or
the Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a Holder,
which shall be the responsibility of the Holders.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "SHELF" registration
statement of the Company and the Guarantors pursuant to the provisions of
Section 2(b) of this Agreement which covers (x) all of the Registrable
Securities, except Registrable Securities that the Holders thereof have elected
not to include in such Shelf Registration Statement and (y) no other securities
unless approved by the Holders whose Registrable Securities are covered by such
Shelf Registration Statement, on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"TRUSTEE" shall mean the trustee with respect to the Securities under
the Indenture.
"UNDERWRITER" shall have the meaning set forth in Section 3 hereof.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" shall mean a
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the Staff of the SEC, the Company and the
Guarantors shall use their best efforts to cause to be filed an
Exchange Offer Registration Statement covering the offer by the Company
and the Guarantors to the Holders to exchange all of the Registrable
Securities for Exchange Securities and to have such Registration
Statement remain effective until the closing of the Exchange Offer. The
Company and the Guarantors shall commence the Exchange Offer promptly
after the Exchange Offer Registration Statement has been declared
effective by the SEC and use their best efforts to have the Exchange
Offer consummated not later than 60 days after such effective date. The
Company and the Guarantors shall commence the Exchange Offer by mailing
the related exchange offer Prospectus and accompanying documents to
each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable
Securities validly tendered pursuant to the Exchange Offer
will be accepted for exchange;
(ii) the dates of acceptance for exchange (which
shall be a period of at least 20 business days from the date
such notice is mailed) (the "EXCHANGE DATES");
(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will
not retain any rights under this Registration Rights
Agreement;
(iv) that Holders electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Security, together with
the enclosed
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letters of transmittal, to the institution and at the address
(located in the Borough of Manhattan, The City of New York)
specified in the notice prior to the close of business on the
last Exchange Date;
(v) that Holders electing to have Registrable
Securities exchanged in the Exchange Offer shall be required
to (a) represent that all Exchange Securities to be received
by them shall be acquired in the ordinary course of their
business and that at the time of the consummation of the
Exchange Offer they shall have no arrangement or understanding
to participate in the distribution (within the meaning of the
0000 Xxx) of the Exchange Securities and (b) make such other
representations as may be reasonably necessary under
applicable SEC rules, regulations or interpretations to render
the use of Form S-4 or other appropriate form under the 1933
Act available; and
(vi) that Holders will be entitled to withdraw their
election, not later than the close of business on the last
Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of New
York) specified in the notice a telegram, facsimile
transmission or letter setting forth the name of such Holder,
the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing his
election to have such Securities exchanged.
As soon as practicable after the last Exchange Date,
the Company and the Guarantors shall:
(i) accept for exchange Registrable Securities or
portions thereof properly tendered and not validly withdrawn
pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the
Trustee for cancellation all Registrable Securities or
portions thereof so accepted for exchange and issue, and cause
the Trustee to promptly authenticate and mail to each Holder,
an Exchange Security equal in principal amount to the
principal amount of the Registrable Securities surrendered by
such Holder.
The Company and the Guarantors shall use their respective best efforts
to complete the Exchange Offer as provided above and shall comply with the
applicable requirements of the 1933 Act, the 1934 Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
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not be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the Staff of the SEC.
The Company and the Guarantors shall inform the Initial Purchasers of the names
and addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right, subject to applicable law, to contact such
Holders and otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.
(b) In the event that (i) the Company and the Guarantors
determine that the Exchange Offer Registration provided for in Section
2(a) above is not available or may not be consummated as soon as
practicable after the last Exchange Date because it would violate
applicable law or the applicable interpretations of the Staff of the
SEC, (ii) the Exchange Offer is not for any other reason consummated by
September 29, 2001 or (iii) the Exchange Offer has been completed and
in the opinion of counsel for the Initial Purchasers a Registration
Statement must be filed and a Prospectus must be delivered by the
Initial Purchasers in connection with any offering or sale of
Registrable Securities, the Company and the Guarantors shall use their
best efforts to cause to be filed as soon as practicable after such
determination, date or notice of such opinion of counsel is given to
the Company, as the case may be, a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable
Securities and to have such Shelf Registration Statement declared
effective by the SEC. In the event the Company and the Guarantors are
required to file a Shelf Registration Statement solely as a result of
the matters referred to in clause (iii) of the preceding sentence, the
Company and the Guarantors shall use their best efforts to file and
have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Securities held by the
Initial Purchasers after completion of the Exchange Offer. The Company
and the Guarantors agree to use their best efforts to keep the Shelf
Registration Statement continuously effective until the expiration of
the period referred to in Rule 144(k) with respect to the Registrable
Securities or such shorter period that will terminate when all of the
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities. The Company and
the Guarantors further agree to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company
and the Guarantors for such Shelf Registration Statement or by the 1933
Act or by any other rules and regulations thereunder for
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shelf registration or if reasonably requested by a Holder with respect
to information relating to such Holder, and to use their best efforts
to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter
practicable. The Company and the Guarantors agree to furnish to the
Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) The Company and the Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a)
and Section 2(b). Each Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective unless
it has been declared effective by the SEC; provided, however, that, if,
after it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the
SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period
of such interference until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume. In the
event the Exchange Offer is not consummated and the Shelf Registration
Statement is not declared effective on or prior to September 29, 2001,
the interest rate on the Securities will be increased by a rate of 0.5%
per annum from such date until the Exchange Offer is consummated or the
Shelf Registration Statement is declared effective by the SEC.
(e) Without limiting the remedies available to the Initial
Purchasers and the Holders, each of the Company and the Guarantors
acknowledges that any failure by it to comply with its obligations
under Section 2(a) and Section 2(b) hereof may result in material
injury to the Initial Purchasers or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages
for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be
reasonably required to specifically enforce the Company's or such
Guarantor's obligations under Section 2(a) and Section 2(b) hereof.
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3. Registration Procedures.
In connection with the obligations of the Company and the Guarantors
with respect to the Registration Statements pursuant to Section 2(a) and Section
2(b) hereof, the Company and the Guarantors shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the 1933 Act, which form (x) shall be
selected by the Company and the Guarantors and (y) shall, in the case
of a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and (z) shall comply as to
form in all material respects with the requirements of the applicable
form and include all financial statements required by the SEC to be
filed therewith, and use their best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be necessary
to keep such Registration Statement effective for the applicable period
and cause each Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424
under the 1933 Act; to keep each Prospectus current during the period
described under Section 4(3) and Rule 174 under the 1933 Act that is
applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for the Holders and to each Underwriter of an
Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities; and the Company and the Guarantors consent to
the use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use their best efforts to register or qualify the
Registrable Securities under all applicable state securities or "BLUE
SKY" laws of such
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jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC,
to cooperate with such Holders in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that neither the Company nor
any Guarantor shall be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file
any general consent to service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and counsel for the
Initial Purchasers promptly and, if requested by any such Holder or
counsel, confirm such advice in writing (i) when a Registration
Statement has become effective and when any post-effective amendment
thereto has been filed and becomes effective, (ii) of any request by
the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company or any
Guarantor contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company
or any Guarantor receives any notification with respect to the
suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation of any proceeding for such
purpose, (v) of the happening of any event during the period a Shelf
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vi) of any determination by the Company or
any Guarantor that a post-effective amendment to a Registration
Statement would be appropriate;
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(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at
the earliest possible moment and provide immediate notice to each
Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing the Registrable
Securities to be sold that are free of any restrictive legends and
enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders may reasonably request at least one
business day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e)(v) hereof, use their best
efforts to prepare and file with the SEC a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company and the Guarantors
agree to notify the Holders with instructions to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an
event, (provided that the Company is not required to specify the nature
of the event giving rise to the notice requirement hereunder) and the
Holders hereby agree to suspend use of the Prospectus until the Company
and the Guarantors have amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after the initial filing of a Registration Statement, provide copies of
such document to the Initial Purchasers and their counsel (and, in the
case of a
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Shelf Registration Statement, the Holders and their counsel) and make
such of the representatives of the Company and the Guarantors as shall
be reasonably requested by the Initial Purchasers or their counsel
(and, in the case of a Shelf Registration Statement, the Holders or
their counsel) available for discussion of such document, and shall not
at any time file or make any amendment to the Registration Statement,
any Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall reasonably object;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Securities or Registrable Securities, as
the case may be, cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA and execute,
and use their best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms
and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities, any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and such attorneys and
accountants as are designated by the Holders, at reasonable times and
in a reasonable manner, all financial and other records, pertinent
documents and properties of the Company and the Guarantors, and cause
the respective officers, directors and employees of the Company and the
Guarantors to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with
a Shelf Registration Statement; provided that such persons shall first
agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such
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information shall be kept confidential by such persons unless (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of the Shelf Registration Statement
or the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of disclosure or failure
to safeguard by any such person, or (iv) such information becomes
available to any such person from a source other than the Company and
such source is not bound by a confidentiality agreement or other
obligation not to disclose such information;
(n) in the case of a Shelf Registration, use their best
efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company and the Guarantors are then listed if
requested by the Majority Holders, to the extent such Registrable
Securities satisfy applicable listing requirements;
(o) use their best efforts to cause the Exchange Securities or
Registrable Securities, as the case may be, to be rated by two
nationally recognized statistical rating organizations (as such term is
defined in Rule 436(g)(2) under the 0000 Xxx);
(p) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to such Holder as such Holder reasonably
requests to be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
the Company or any Guarantor has received notification of the matters
to be incorporated in such filing; and
(q) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection
therewith (including those reasonably requested by the Holders of a
majority of the Registrable Securities being sold) in order to expedite
or facilitate the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such connection,
(i) to the extent possible, make such representations and warranties to
the Holders and any Underwriters of such Registrable Securities with
respect to the business of the Company, the Guarantors and their
respective subsidiaries, the Registration Statement, Prospectus and
documents incorporated by
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reference or deemed incorporated by reference therein, if any, in each
case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if and
when requested, (ii) obtain opinions of counsel to the Company and the
Guarantors (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders and such Underwriters
and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Securities, covering the matters customarily
covered in opinions requested in underwritten offerings, (iii) obtain
"COLD COMFORT" letters from the independent certified public
accountants of the Company and the Guarantors (and, if necessary, any
other certified public accountant of any subsidiary of the Company or
any Guarantor, or of any business acquired by the Company or any
Guarantor for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to
each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "COLD COMFORT" letters in connection with
underwritten offerings, and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold
or the Underwriters, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company and the Guarantors made
pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company and the
Guarantors may require each Holder of Registrable Securities to furnish to them
such information regarding the Holder and the proposed distribution by such
Holder of such Registrable Securities as they may from time to time reasonably
request in writing. No Holder of Registrable Securities shall be entitled to any
additional interest thereon pursuant to Section 2(d) unless and until such
Holder shall have provided all such information which is required by the 1933
Act or rules or regulations of the SEC to be included in the Shelf Registration
Statement prior to the time it is declared effective.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice (a "BLOCKAGE NOTICE") from the Company or any
Guarantor of
(x) the happening of any event of the kind described in Section
3(e)(v) hereof, or
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(y) the determination by the Company and the Guarantors that, in
their reasonable best judgment and upon written advice of
counsel, the continued effectiveness and use of the Shelf
Registration Statement would require the disclosure of
confidential information or interfere with any financing,
acquisition, reorganization or other material transaction
involving the Company,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof
(or a notice from the Company that such Holder may resume use of the existing
Prospectus), and, if so directed by the Company or such Guarantor, such Holder
will deliver to the Company or such Guarantor (at its expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company or any Guarantor shall give any such
notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company and the Guarantors shall extend the period
during which the Registration Statement shall be maintained effective pursuant
to this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders
shall have (x) received copies of the supplemented or amended Prospectus
necessary to resume such dispositions or (y) a notice permitting use of the
existing Prospectus. The Company may give any such notice only twice during any
365 day period and any such suspensions may not exceed 30 days for each
suspension and there may not be more than two suspensions in effect during any
365 day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any
broker-dealer that receives Exchange Securities for its own account in
the Exchange Offer in exchange for Securities that were acquired by
such broker-dealer as a result of market-making or other trading
activities (a "PARTICIPATING BROKER-DEALER"), may be deemed to be an
"UNDERWRITER" within the meaning of the 1933 Act and must deliver a
prospectus meeting
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the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
The Company and the Guarantors understand that it is the
Staff's position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a
statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery
obligation under the 1933 Act in connection with resales of Exchange
Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Company and the Guarantors agree that
the provisions of this Agreement as they relate to a Shelf Registration
shall also apply to an Exchange Offer Registration to the extent, and
with such reasonable modifications thereto as may be, reasonably
requested by the Initial Purchasers or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order
to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff
recited in Section 4(a) above; provided that:
(i) the Company and the Guarantors shall not be
required to amend or supplement the Prospectus contained in
the Exchange Offer Registration Statement, as would otherwise
be contemplated by Section 3(i), for a period exceeding 180
days after the last Exchange Date (as such period may be
extended pursuant to the penultimate paragraph of Section 3 of
this Agreement) and Participating Broker-Dealers shall not be
authorized by the Company and the Guarantors to deliver and
shall not deliver such Prospectus after such period in
connection with the resales contemplated by this Section 4;
and
(ii) the application of the Shelf Registration
procedures set forth in Section 3 of this Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC or the 1933 Act and the
rules and regulations thereunder, will be in conformity with
the reasonable request in writing to the Company and the
Guarantors by the Initial
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Purchasers or with the reasonable request in writing to the
Company and the Guarantors by one or more broker-dealers who
certify to the Initial Purchasers, the Company and the
Guarantors in writing that they anticipate that they will be
Participating Broker- Dealers; and provided further that, in
connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer
Registration, the Company and the Guarantors shall be
obligated (x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be Credit Suisse
First Boston Corporation unless it elects not to act as such
representative, in which case it shall be the entity chosen by
the consent of a majority of the Participating Broker-Dealers,
(y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be
counsel to the Initial Purchasers unless such counsel elects
not to so act, in which case it shall be the counsel chosen by
the consent of a majority of the Participating Broker-Dealers
and (z) to cause to be delivered only one, if any, "COLD
COMFORT" letter with respect to the Prospectus in the form
existing on the last Exchange Date and with respect to each
subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the
Company, the Guarantors or any Holder with respect to any good faith
request that they may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless the Initial Purchasers, each
Holder and each Person, if any, who controls any Initial Purchaser or
any Holder within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act, or is under common control with, or is
controlled by, any Initial Purchaser or any Holder, from and against
all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by the
Initial Purchaser any Holder or any such controlling or affiliated
Person in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment
thereto) pursuant to which Exchange Securities or Registrable
Securities were registered under the 1933 Act, including all documents
incorporated therein by reference, or caused by any omission or alleged
omission to state therein a material fact required
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to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
or caused by any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (as amended or supplemented
if the Company or any Guarantor shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact necessary to make the statements therein
in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission in reliance upon and in conformity
with written information furnished to the Company by any Initial
Purchaser or any selling Holder expressly for use therein; provided
that the Company and the Guarantors shall not be liable to any Initial
Purchaser, any Holder or any such controlling or affiliated Person with
respect to any Initial Purchaser or Holder to the extent that any such
losses, claims, damages or liabilities (the "LOSSES") arise out of or
are based upon an untrue statement or alleged untrue statement of
material fact or omission or alleged omission if either (A)(i) such
Initial Purchaser or Holder was required by law to send or deliver, and
failed to send or deliver, a copy of the Prospectus with or prior to
delivery of written confirmation of the sale by such Initial Purchaser
or Holder to the person asserting the claims from which such Losses
arise and (ii) the Prospectus made available by the Company prior to
the time of delivery of such confirmation would have corrected such
untrue statement or alleged untrue statement or omission or alleged
omission or (B)(i) such Holder disposed of Registrable Securities to
the person asserting the claim from which such Losses arise pursuant to
a Registration Statement and sent or delivered, or was required by law
to send or deliver, a Prospectus to such person in connection with such
disposition and (ii) such Holder received a Blockage Notice or a notice
from the Company of the happening of an event of the kind described in
Section 3(e)(iii) in writing prior to execution and delivery of a
contract for such disposition. In connection with any Underwritten
Offering permitted by Section 3, the Company and the Guarantors will
also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the
distribution, their officers and directors and each Person who controls
such Persons (within the meaning of the 1933 Act and the 0000 Xxx) to
the same extent as provided above with respect to the indemnification
of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors, the Initial
Purchasers and the other selling Holders, and each of their respective
directors,
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officers who sign the Registration Statement and each Person, if any,
who controls the Company or any Guarantor, any Initial Purchaser and
any other selling Holder within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company and the Guarantors to the Initial
Purchasers and the Holders, but only with reference to any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or caused by any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, made in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly
for use therein.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of
which indemnity may be sought pursuant to either paragraph (a) or
paragraph (b) above, such Person (the "INDEMNIFIED PARTY") shall
promptly notify the Person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing; provided that the failure to so
notify the indemnifying party (i) will not relieve it from liability
under paragraphs (a) and (b) above 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) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligations provided in paragraph (a) or (b) above. In case any such
action is brought against any indemnified party, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other
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than reasonable costs of investigation. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (A) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for the Initial Purchasers and all Persons, if any, who
control any Initial Purchaser within the meaning of either Section 15
of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (X) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for the Company and the Guarantors, their respective
directors, officers who sign the Registration Statement and each
Person, if any, who controls the Company or any Guarantor within the
meaning of either such Section and (C) the fees and expenses of more
than one separate firm (in addition to any local counsel) for all
Holders and all Persons, if any, who control any Holders within the
meaning of either such Section, and that all such fees and expenses
shall be reimbursed as they are incurred. In such case involving the
Initial Purchasers and Persons who control the Initial Purchasers, such
firm shall be designated in writing by Credit Suisse First Boston
Corporation. In such case involving the Holders and such Persons who
control Holders, such firm shall be designated in writing by the
Majority Holders. In all other cases, such firm shall be designated by
the Company. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but,
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which such indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and
does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or
liabilities, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the
other hand in connection with the
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statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors, on the one hand,
and the Holders, on the other hand, 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 any
Guarantor or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Holders' respective obligations to
contribute pursuant to this Section 5(d) are several in proportion to
the respective principal amount of Registrable Securities of such
Holder that were registered pursuant to a Registration Statement.
(e) The Company, each Guarantor and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section
5 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be
required to indemnify or contribute any amount in excess of the amount
by which the total price at which Registrable Securities were sold by
such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 5 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party
at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company and the Guarantors,
their officers or directors or any Person controlling the Company or any
Guarantor,
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(iii) acceptance of any of the Exchange Securities and (iv) any sale of
Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor any
Guarantor has entered into, and on or after the date of this Agreement
will enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to
the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of other issued and
outstanding securities of the Company or any Guarantor under any such
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the
Guarantors have obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver
or consent; provided, however, that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of
Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address
given by such Holder to the Company by means of a notice given in
accordance with the provisions of this Section 6(c), which address
initially is, with respect to the Initial Purchasers, the address set
forth in the Purchase Agreement; and (ii) if to the Company and the
Guarantors, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
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Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without limitation and without the
need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or
other disposition of Registrable Securities in violation of the terms
of the Purchase Agreement. If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the
benefits hereof. The Initial Purchasers (in their capacity as Initial
Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or
any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Purchases and Sales of Securities. The Company and the
Guarantors shall not, and shall use their best efforts to cause their
respective affiliates (as defined in Rule 405 under the 0000 Xxx) not
to, purchase and then resell or otherwise transfer any Securities which
constitute "restricted securities" under Rule 144 under the 1933 Act
except pursuant to an effective registration statement under the 1933
Act.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the
other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable
to protect its rights or the rights of Holders hereunder.
(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.
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(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the
laws of the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CENTURY ALUMINUM COMPANY
By:______________________________________
Name:
Title:
CENTURY ALUMINUM OF
WEST VIRGINIA, INC.,
as a Guarantor
By:______________________________________
Name:
Title:
BERKELEY ALUMINUM, INC.,
as a Guarantor
By:______________________________________
Name:
Title:
CENTURY OF KENTUCKY, INC.,
as a Guarantor
By:______________________________________
Name:
Title:
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VIRGIN ISLANDS ALUMINA
CORPORATION, LLC.,
as a Guarantor
By:______________________________________
Name:
Title:
METALSCO LTD.,
as a Guarantor
By:______________________________________
Name:
Title:
SKYLINER, INC.,
as a Guarantor
By:______________________________________
Name:
Title:
NSA, LTD.,
as a Guarantor
By:______________________________________
Name:
Title:
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Confirmed and accepted as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
FLEET SECURITIES, INC.
By: Credit Suisse First Boston Corporation
By:_____________________________________________
Name:
Title:
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