EXHIBIT 4.3
TRIAD ACQUISITION CORP.
to be merged with and into
TRIAD FINANCIAL CORPORATION
11.125% SENIOR NOTES DUE 2013
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
April 29, 2005
Xxxxxxx, Xxxxx & Co.,
Citigroup Global Markets Inc.
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Triad Acquisition Corp., a Delaware corporation (the "Company"), proposes
to issue and sell to the Purchasers (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) its 11.125% Senior Notes due 2013.
Pursuant to a stock purchase agreement dated as of December 23, 2004 (the "Stock
Purchase Agreement"), among Triad Holdings Inc., Ford Motor Credit Corporation,
Fairlane Credit LLC and the Company, the Company will acquire all of the
outstanding capital stock of Triad Financial Corporation, a California
corporation ("Triad Financial"). Following the acquisition, the Company will be
merged with and into Triad Financial, with Triad Financial being the surviving
entity. Upon consummation of the merger, Triad Financial will assume all of the
Company's rights, duties, obligations and liabilities under this Agreement
pursuant to a joinder agreement (the "Joinder Agreement"), substantially in the
form set forth in Annex VI to the Purchase Agreement (as defined herein), dated
the date hereof, among Triad Financial and the Purchasers. Upon effectiveness of
the Joinder Agreement, all references to the "Company" herein shall refer to
Triad Financial as successor to Triad Acquisition Corp., as if Triad Financial
were the original party hereto.
As an inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the obligations of the Purchasers
thereunder, the Company agrees with the Purchasers for the benefit of holders
(as defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
1. Certain Definitions. For purposes of this Agreement, the following
terms shall have the following respective meanings:
"Affiliate Investor" means any Principal of the Company (as defined in the
Indenture) that owns any Securities or Exchange Securities to the extent that
such person is included in a Market Making Shelf Registration in accordance with
Section 2(c) hereof.
"Base Interest" shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without giving effect to
the provisions of this Agreement.
"Blackout Period" shall have the meaning assigned thereto in Section 2(b)
and Section 2(c) hereof.
The term "broker-dealer" shall mean any broker or dealer registered with
the Commission under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holding or a day on which banking institutions in New York, New York are
required by law to remain closed.
"Closing Date" shall mean the date on which the Securities are initially
issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall mean
the time and date as of which the Commission declares the Exchange Registration
Statement effective or as of which the Exchange Registration Statement otherwise
becomes effective, (ii) a Shelf Registration, shall mean the time and date as of
which the Commission declares the Shelf Registration Statement effective or as
of which the Shelf Registration Statement otherwise becomes effective and (iii)
a Market Making Shelf Registration, shall mean the time and date as of which the
Commission declares the Market Making Shelf Registration Statement effective or
as of which the Market Making Shelf Registration Statement otherwise becomes
effective.
"Electing Holder" shall mean any holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder.
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Registration" shall have the meaning assigned thereto in Section
3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned thereto
in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in Section
2(a) hereof.
The term "holder" shall mean each of the Purchasers and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
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"Indenture" shall mean the Indenture, dated as of April 29, 2005, between
the Company and JPMorgan Chase Bank, N.A., as Trustee, as the same shall be
amended from time to time.
"Market Making Shelf Registration" shall have the meaning assigned thereto
in Section 2(c) hereof.
"Market Making Shelf Registration Statement" shall have the meaning
assigned thereto in Section 2(c) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, limited liability company, individual, government or political
subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of April
27, 2005, between the Purchasers and the Company relating to the Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security upon the earliest to
occur of the following: (i) in the circumstances contemplated by Section 2(a)
hereof, the Security has been exchanged for an Exchange Security in an Exchange
Offer as contemplated in Section 2(a) hereof (provided that any Exchange
Security that, pursuant to the last two sentences of Section 2(a), is included
in a prospectus for use in connection with resales by broker-dealers shall be
deemed to be a Registrable Security with respect to Sections 5, 6 and 9 until
resale of such Registrable Security has been effected within the 180-day period
referred to in Section 2(a)); (ii) in the circumstances contemplated by Section
2(b) hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has been
sold or otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such Security
is sold pursuant to Rule 144 under circumstances in which any legend borne by
such Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in Section
2(d) hereof.
"Registration Expenses" shall have the meaning assigned thereto in Section
4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
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"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision), as the same
shall be amended from time to time.
"Securities" shall mean, collectively, the 11.125% Senior Notes due 2013
of the Company to be issued and sold to the Purchasers, and securities issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
The term "Secondary Offer Registration Statement" shall mean (i) the Shelf
Registration Statement required to be filed by the Company pursuant to Section
2(b) hereof and/or (ii) the Market Making Shelf Registration Statement required
to be filed by the Company pursuant to Section 2(c) hereof, in each case, as
applicable. As used herein, references to a Secondary Offer Registration
Statement in the singular shall, if applicable, be deemed to be in the plural.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor thereto, and the rules, regulations and forms promulgated thereunder.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section 2(d)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
file under the Securities Act no later than 90 days after the Closing
Date, a registration statement relating to an offer to exchange (such
registration statement, the "Exchange Registration Statement," and such
offer, the "Exchange Offer") any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company, which
debt securities are substantially identical to the Securities (and are
entitled to the benefits of a trust indenture which is substantially
identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the additional interest
contemplated in Section 2(d) below (such new debt securities hereinafter
called "Exchange Securities"). The Company agrees to use all
commercially reasonable efforts to cause the Exchange Registration
Statement to become effective under the Securities Act no later than 210
days after the Closing Date. The Exchange Offer will be registered under
the Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act.
Unless the Exchange Offer would not be permitted by applicable law or
Commission policy, the Company further agrees to use all
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commercially reasonable efforts to commence and complete the Exchange
Offer promptly, but no later than 40 Business Days after such registration
statement has become effective, hold the Exchange Offer open for at least
20 Business Days and exchange Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn on or prior
to the expiration of the Exchange Offer. The Exchange Offer will be deemed
to have been "completed" only if the debt securities received by holders
other than Restricted Holders in the Exchange Offer for Registrable
Securities are, upon receipt, transferable by each such holder without
restriction under the Securities Act and the Exchange Act and without
material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to
occur of (i) the Company having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been properly tendered
and not withdrawn before the expiration of the Exchange Offer, which shall
be on a date that is at least 20 Business Days following the commencement
of the Exchange Offer. The Company agrees (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any holder
of Exchange Securities that is a broker-dealer and (y) to keep such
Exchange Registration Statement effective for a period (the "Resale
Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 180th
day after the Exchange Offer has been completed or such time as such
broker-dealers no longer own any Registrable Securities. With respect to
such Exchange Registration Statement, such holders shall have the benefit
of the rights of indemnification and contribution set forth in Sections
6(a), (e), (f) and (g) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt
securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon
receipt, transferable by each such holder without restriction under the
Securities Act, (ii) the Company is not required to file the Exchange
Registration Statement; or (iii) any holder of Registrable Securities
notifies the Company prior to the 20th Business Day following the
consummation of the Exchange Offer that: (a) it is prohibited by law or
Commission policy from participating in the Exchange Offer; (b) it may not
resell the Exchange Notes to the public without delivering a prospectus
and the prospectus supplement contained in the Exchange Registration
Statement is not appropriate or available for such resales; or (c) it is a
broker-dealer and owns notes acquired directly from the Company or an
affiliate of the Company, the Company shall, in lieu of (or, in the case
of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), file under the Securities Act no later than
the later of 30 days after the time such obligation to file arises (but no
earlier than 90 days of the Closing Date), a "shelf" registration
statement providing for the registration of, and the sale on a continuous
or delayed basis by the holders of, all of the Registrable Securities,
pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). The Company agrees to use
all commercially reasonable efforts (x) to cause the Shelf Registration
Statement to become or be declared effective on or prior to 120 days after
such Shelf Registration Statement filing obligation arises (but no earlier
than 210 days after the Closing Date) and to keep such Shelf Registration
Statement continuously effective for a period ending on the earlier of the
second anniversary of the Effective Time or such time as there are no
longer any Registrable Securities outstanding, provided, however, that no
holder shall be entitled to be named as a selling
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securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective Time
of the Shelf Registration Statement, promptly upon the request of any
holder of Registrable Securities that is not then an Electing Holder, to
take any action reasonably necessary to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
holder as a selling securityholder in the Shelf Registration Statement,
provided, however, that nothing in this clause (y) shall relieve any such
holder of the obligation to return a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(iii) hereof.
Notwithstanding anything to the contrary in this Section 2(b), upon notice
to the Electing Holders, the Company may suspend the use or the
effectiveness of such Shelf Registration Statement, or extend the time
period in which it is required to file the Shelf Registration Statement,
for up to 60 days in the aggregate in any 12-month period (a "Blackout
Period") if the Board of Directors of the Company determines that such
registration would require (i) disclosure of an event at such time as
could reasonably be expected to have a material adverse effect on the
business operations or prospects of the Company or (ii) disclosure of
material information relating to a corporate development; provided that
the Company shall promptly notify the Electing Holders when the Shelf
Registration Statement may once again be used or is effective.
(c) The Company shall file under the Securities Act, prior to or on
the date that the Exchange Registration Statement (or in lieu thereof, the
Shelf Registration Statement) becomes or is declared effective, a "shelf"
registration statement (which may be the Exchange Registration Statement
or the Shelf Registration Statement if permitted by the rules and
regulations of the Commission) pursuant to Rule 415 under the Securities
Act or any similar rule that may be adopted by the Commission providing
for the registration of, and the sale on a continuous or delayed basis in
secondary transactions by Xxxxxxx, Xxxxx & Co. of, Securities (in the
event of a Shelf Registration) or Exchange Securities (in the event of an
Exchange Offer) (such filing, the "Market Making Shelf Registration", and
such registration statement, the "Market Making Shelf Registration
Statement"). The Company agrees to use all commercially reasonable efforts
to cause the Market Making Shelf Registration Statement to become or be
declared effective on or prior to (i) the date the Exchange Offer is
completed pursuant to Section 2(a) above or (ii) the date the Shelf
Registration becomes or is declared effective pursuant to Section 2(b)
above, and to keep such Market Making Shelf Registration Statement
continuously effective for so long as Xxxxxxx, Sachs & Co. may be required
to deliver a prospectus in connection with transactions in the Securities
or the Exchange Securities, as the case may be. In the event that Xxxxxxx,
Sachs & Co. holds Securities at the time an Exchange Offer is to be
conducted under Section 2(a) above, the Company agrees that the Market
Making Shelf Registration shall provide for the resale by Xxxxxxx, Xxxxx &
Co. of such Securities and shall use its commercially reasonable efforts
to keep the Market Making Shelf Registration Statement continuously
effective until such time as Xxxxxxx, Sachs & Co. determines in its
reasonable judgment that it is no longer required to deliver a prospectus
in connection with the sale of such Securities.
Notwithstanding anything to the contrary in this Section 2(c), upon
at least 10 Business Day's prior written notice to Xxxxxxx, Xxxxx & Co.,
the Company may elect to cause the Market Making Registration Statement to
provide for the registration of, and the sale on a continuous or delayed
basis in secondary transactions by any Affiliate Investor of Securities
(in the event of a shelf registration) or Exchange Securities (in the
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event of an Exchange Offer) regardless of whether such Affiliate Investor
otherwise would qualify as an Electing Holder eligible to participate in a
Shelf Registration Statement in accordance with Section 2(b) hereof;
provided however, if Xxxxxxx, Sachs & Co. requests in writing at any time,
for any reason whatsoever, that the Company exclude any or all Affiliate
Investors from the Market Making Registration Statement, then the Company
shall either omit such Affiliate Investors from inclusion in the Market
Making Registration Statement or promptly amend the Market Making
Registration Statement to exclude them from the Market Making Registration
Statement. The inclusion of any Affiliate Investor in the Market Making
Registration Statement shall not affect the rights of Xxxxxxx, Xxxxx & Co.
to make any determinations otherwise provided exclusively to Xxxxxxx,
Sachs & Co. in this Agreement.
Notwithstanding the foregoing, the Company may suspend the offering
and sale under the Market Making Shelf Registration Statement for a period
or periods the Board of Directors of the Company reasonably determines to
be necessary, but in any event not to exceed 60 days in any 12-month
period during which the Market Making Shelf Registration Statement is
required to be effective and usable hereunder (measured from the Effective
Time of the Market Making Shelf Registration Statement to successive
anniversaries thereof) (a "Blackout Period") if the Board of Directors of
the Company determines that such registration would require (i) disclosure
of an event at such time as could reasonably be expected to have a
material adverse effect on the business operations or prospects of the
Company or (ii) disclosure of material information relating to a corporate
development; provided that the Company shall promptly notify Xxxxxxx,
Sachs & Co. when the Market Making Shelf Registration Statement may once
again be used or is effective.
(d) In the event that (i) the Company has not filed the Exchange
Registration Statement or the Shelf Registration Statement on or before
the date on which such registration statement is required to be filed
pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not become
effective or been declared effective by the Commission on or before the
date on which such registration statement is required to become or be
declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 40 Business Days
after the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required to
be made) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Company or shall
become subject to an effective stop order issued pursuant to Section 8(d)
of the Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein, including, with
respect to any Shelf Registration Statement, during any applicable
Blackout Period) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing,
a "Registration Default Period"), then, as liquidated damages for such
Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall
accrue at an a per annum rate of 0.25% for the first 90 days of the
Registration Default Period and shall increase by an additional rate of
0.25% per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Special
Interest for all Registration Defaults of 1.00% per annum; provided,
however, that the Company shall in no event be required to pay Special
7
Interest with respect to any Shelf Registration Statement during any
applicable Blackout Period. Special interest shall be the exclusive
monetary remedy of the holders of Registrable Securities with respect to a
Registration Default.
(e) The Company shall take all actions necessary or advisable to be
taken by it to ensure that the transactions contemplated herein are
effected as so contemplated.
(f) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference
herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document incorporated, or deemed
to be incorporated, therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a),
Section 2(b) or Section 2(c), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration,
the Shelf Registration or Marketing Making Registration whichever may be
first, the Company shall qualify the Indenture under the Trust Indenture
Act.
(b) In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall:
(i) prepare and file with the Commission no later than 90 days
after the Closing Date, an Exchange Registration Statement on any
form which may be utilized by the Company and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers
during the Resale Period to be effected as contemplated by Section
2(a), and use all commercially reasonable efforts to cause such
Exchange Registration Statement to become effective as soon as
practicable thereafter, but no later than 210 days after the Closing
Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules
and regulations of the Commission and the instructions applicable to
the form of such Exchange Registration Statement, and promptly
provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended
or supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange
Securities;
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(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such Exchange
Registration Statement, and confirm such advice in writing, (A) when
such Exchange Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments relevant to the
broker-dealer by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that
purpose, (D) if at any time the representations and warranties of
the Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F)
if at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such
Exchange Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder or contains an untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(iv) in the event that the Company would be required, pursuant
to Section 3(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, and except as otherwise permitted during any
Blackout Period, without delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(v) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Exchange Registration Statement or any post-effective amendment
thereto at the earliest practicable date;
(vi) use all commercially reasonable efforts to (A) register
or qualify the Exchange Securities under the securities laws or blue
sky laws of such jurisdictions as are contemplated by Section 2(a)
no later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws
so as to permit the continuance of offers, sales and dealings
therein in such jurisdictions until the expiration of the Resale
Period and (C) take any and all other actions as may be reasonably
9
necessary or advisable to enable each broker-dealer holding Exchange
Securities to consummate the disposition thereof in such
jurisdictions; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(vii) use all commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect the
Exchange Registration, the Exchange Offer and the offering and sale
of Exchange Securities by broker-dealers during the Resale Period,
subject to the proviso in clause (vi) above;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an earnings
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the
any Secondary Offer Shelf Registration, the Company shall use all
commercially reasonable efforts to cause the applicable Secondary Offer
Registration Statement to permit the disposition of Registrable Securities
by the holders thereof, in the case of the Shelf Registration, and of
Securities or Exchange Securities by Xxxxxxx, Xxxxx & Co. and any
Affiliate Investor, in the case of a Market Making Shelf Registration (in
each case, subject to any applicable Blackout Period), in accordance with
the intended method or methods of disposition thereof provided for in the
applicable Secondary Offer Registration Statement. In connection
therewith, the Company shall:
(i) (A) prepare and file with the Commission within the time
periods specified in Section 2(b) and Section 2(c) hereof, as
applicable, a Secondary Offer Registration Statement on any form
which may be utilized by the Company, which shall (x) register all
of the Registrable Securities, in the case of a Shelf Registration,
and the Securities and Exchange Securities, in the case of a Market
Making Shelf Registration, for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by the holders of the Registrable Securities as, from time
to time, may be Electing Holders, in the case of a Shelf
Registration, or Xxxxxxx, Sachs & Co. and any Affiliate Investor, in
the case of a Market Making Shelf Registration and (y) be, in the
case of a Market Making Shelf Registration, in the form approved by
Xxxxxxx, Xxxxx & Co., and (B) use all commercially reasonable
efforts to cause each such Secondary Offer Registration Statement to
become effective within the time periods specified in Section 2(b)
and Section 2(c) hereof, as applicable;
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of
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Registrable Securities; no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such holder has returned a completed
and signed Notice and Questionnaire to the Company by the deadline
for response set forth therein, with responses reasonably
satisfactory to the Company; provided, however, holders of
Registrable Securities shall have at least 28 calendar days from the
date on which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire to
the Company; no holder of Registrable Securities shall be entitled
to Special Interest pursuant to Section 2(d) hereof as a result of a
Registration Default caused by the Company's failure to comply with
Section 2(b) hereof unless and until such holder shall have provided
all such information; in the case of any Affiliate Investor that
desires to participate in any Market Making Shelf Registration, such
AI shall have returned a completed and signed Questionnaire to the
Company prior the time that the Company notifies Xxxxxxx, Sachs &
Co. of its intention to include such Affiliate Investor in the
Market Making Shelf Registration, and the responses by the Affiliate
Investor in such Questionnaire shall be reasonably satisfactory to
each of the Company and Xxxxxxx, Xxxxx & Co.;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed
and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable (A) prepare and file with the
Commission such amendments and supplements to the Secondary Offer
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Secondary
Offer Registration Statement for the period specified in Section
2(b) and Section 2(c) hereof, as applicable, and as may be required
by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Secondary Offer
Registration Statement and, in the case of an amendment to or
supplement of the Market Making Shelf Registration Statement, each
in a form approved by Xxxxxxx, Sachs & Co. and (B) furnish to the
Electing Holders, in the case of a Shelf Registration, and Xxxxxxx,
Sachs & Co. and any Affiliate Investor, in the case of a Market
Making Shelf Registration, copies of any such supplement or
amendment simultaneously with or prior to its being used or filed
with the Commission to the extent such documents are not available
through the Commission's XXXXX filing systems;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities,
Securities or Exchange Securities, as applicable, covered by such
Secondary Offer Registration Statement in accordance with the
intended methods of disposition provided for therein by the Electing
Holders, in the case of a Shelf Registration, or Xxxxxxx, Sachs &
Co. and any Affiliate Investor, in the case of a Market Making Shelf
Registration;
11
(vi) provide (A) with respect to a Shelf Registration, the
Electing Holders; (B) with respect to a Market Making Shelf
Registration, Xxxxxxx, Xxxxx & Co. and its counsel and any Affiliate
Investor; and (C) in either case, the underwriters (which term, for
purposes of this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(a)(11) of the Securities
Act), if any, thereof, and counsel for such underwriters, the
opportunity to participate in the preparation of such Secondary
Offer Registration Statement, each prospectus included therein or
filed with the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Secondary Offer Registration Statement, and throughout the period
specified in Section 2(b) or Section 2(c) hereof, as applicable,
make available at reasonable times at the Company's principal place
of business or such other reasonable place for inspection by the
persons referred to in Section 3(d)(vi) who shall certify to the
Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration, or the Securities or
Exchange Securities pursuant to the Market Making Shelf
Registration, as applicable, such financial and other information
and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of
the Company to respond to such inquiries, as shall be reasonably
necessary (and in the case of counsel, not violate an attorney
client privilege, in such counsel's belief), in the judgment of the
respective counsel referred to in such Section 3(d)(vi), to conduct
a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering on behalf of the Electing Holders shall be
conducted by one counsel designated by the holders of at least a
majority in aggregate principal amount of the Registrable Securities
held by the Electing Holders at the time outstanding and provided
further that each such party shall be required to maintain in
confidence and not to disclose to any other person any information
or records reasonably designated by the Company as being
confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such
Secondary Offer Registration Statement or otherwise), or (B) such
person shall be required so to disclose such information pursuant to
a subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have
given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such
Secondary Offer Registration Statement or the prospectus included
therein or in an amendment to such Secondary Offer Registration
Statement or an amendment or supplement to such prospectus in order
that such Secondary Offer Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the rules
and regulations of the Commission and does not contain an untrue
statement of a material fact or omit to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(viii) promptly notify each of the Electing Holders, Xxxxxxx,
Sachs & Co. or each of the Affiliate Investors, as applicable, and
any underwriter thereof (which notification may be made through any
managing underwriter that is a representative of such underwriter
for such purpose) and confirm such advice in
12
writing, (A) when such Secondary Offer Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Secondary Offer Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto which
are relevant to the Electing Holders, Xxxxxxx, Xxxxx & Co. or an
Affiliate Investor, as applicable, or any request by the Commission
for amendments or supplements to such Secondary Offer Registration
Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such Secondary Offer Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Registrable Securities or the Securities or
Exchange Securities, as applicable, for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or
(F) if at any time when a prospectus is required to be delivered
under the Securities Act, that such Secondary Offer Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(ix) use all commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of such
Secondary Offer Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters
or any Electing Holder, Goldman, Sachs & Co. or any Affiliate
Investor, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such Electing Holder, Goldman,
Sachs & Co. or such Affiliate Investor reasonably specifies should
be included therein relating to the terms of the sale of such
Registrable Securities or the Securities or Exchange Securities, as
applicable, including information with respect to the principal
amount of thereof being sold by such Electing Holder, Goldman, Sachs
& Co. or such Affiliate Investor to any underwriters, the name and
description of such Electing Holder, Goldman, Sachs & Co., such
Affiliate Investor or such underwriter, the offering price of such
Registrable Securities, Securities or Exchange Securities, as
applicable, and any discount, commission or other compensation
payable in respect thereof and the purchase price being paid
therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities, Securities or Exchange
Securities, as applicable, to be sold by such Electing Holder,
Goldman, Sachs & Co. or such Affiliate Investor or to such
underwriters, as applicable; and make all required filings of such
prospectus supplement or post effective amendment promptly after
notification of the matters to be incorporated in such prospectus
13
supplement or post effective amendment provided, however, that the
Company shall not be required to take any action pursuant to this
section that would, in the opinion of counsel for the Company,
violate applicable law;
(xi) furnish to Xxxxxxx, Xxxxx & Co., each Electing Holder or
each underwriter, if any, thereof and the respective counsel
referred to in Section 3(d)(vi) an executed copy (or, in the case of
an Electing Holder or Affiliate Investor, a conformed copy) of such
Secondary Offer Registration Statement, each such amendment and
supplement thereto (in each case, including all exhibits thereto (in
the case of an Electing Holder of Registrable Securities, upon
request) and documents incorporated by reference therein) and such
number of copies of such Secondary Offer Registration Statement
(excluding exhibits thereto and documents incorporated by reference
therein unless specifically so requested by Xxxxxxx, Sachs & Co.,
such Electing Holder, Affiliate Investor or underwriter, as the case
may be) and of the prospectus included in such Secondary Offer
Registration Statement (including each preliminary prospectus and
any summary prospectus), in conformity in all material respects with
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder to the extent such documents are not available through
the Commission's XXXXX filing systems, and such other documents, as
Xxxxxxx, Sachs & Co., such Electing Holder, Affiliate Investor and
underwriter, if any, may reasonably request in order to facilitate
the offering and disposition of the Registrable Securities owned by
such Electing Holder, the Securities or Exchange Securities owned by
Xxxxxxx, Xxxxx & Co. or such Affiliate Investor, and the Registrable
Securities, Securities or Exchange Securities underwritten by such
underwriter, as applicable, and to permit Xxxxxxx, Sachs & Co., such
Electing Holder, Affiliate Investor and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the
Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or
supplement thereto by Xxxxxxx, Xxxxx & Co., each such Electing
Holder, Affiliate Investor and underwriter (in each case subject to
any applicable Blackout Period), in each case in the form most
recently provided to such person by the Company, in connection with
the offering and sale of the Registrable Securities, Securities or
Exchange Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(xii) use all commercially reasonable efforts to (A) register
or qualify the Registrable Securities, Securities or Exchange
Securities, as applicable, to be included in such Secondary Offer
Registration Statement under such securities laws or blue sky laws
of such jurisdictions as any Electing Holder, Goldman, Sachs & Co.
and Affiliate Investor, if any, and each underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above or the period the
Market Making Shelf Registration is required to remain effective
under Section 2(c) above, as applicable, and for so long as may be
necessary to enable Xxxxxxx, Xxxxx & Co., any such Electing Holder,
Affiliate Investor or underwriter to complete its distribution of
Registrable Securities, Securities or Exchange Securities, as
applicable, pursuant to such Secondary Offer Registration Statement
and (C) take any and all other actions as may be reasonably
14
necessary or advisable to enable each such Electing Holder and
Affiliate Investor and Xxxxxxx, Sachs & Co., as applicable and
underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities, Securities or Exchange
Securities; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(d)(xii), (2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction
or (3) make any changes to its certificate of incorporation or by
laws or any agreement between it and its stockholders;
(xiii) use all commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required of the
Company or, with respect to the Registrable Securities, Securities
or Exchange Securities, as applicable, to effect the Shelf
Registration or the Market Marking Shelf Registration, or the
offering or sale in connection therewith or to enable the selling
holder or holders or Xxxxxxx, Xxxxx & Co. to offer, or to consummate
the disposition of, their Registrable Securities, Securities or
Exchange Securities, as applicable, subject to the proviso in clause
(xii) above;
(xiv) unless any Registrable Securities shall be in book-entry
only form, cooperate with the Electing Holders or Xxxxxxx, Sachs &
Co. and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities, Securities or Exchange Securities to be sold, which
certificates, if so required by any securities exchange upon which
any Registrable Securities, Securities or Exchange Securities are
listed, shall be printed, penned, lithographed or engraved, or
otherwise produced by any combination of such methods, on steel
engraved borders, and which certificates shall not bear any
restrictive legends; and, in the case of an underwritten offering,
enable such Registrable Securities, Securities or Exchange
Securities, as applicable to be in such denominations and registered
in such names as the managing underwriters may request at least two
business days prior to any sale of the Registrable Securities,
Securities or Exchange Securities, as applicable;
(xv) provide a CUSIP number for all Registrable Securities,
Securities or Exchange Securities, as applicable, not later than the
applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including
customary provisions relating to indemnification and contribution,
and take such other actions in connection therewith as, (A) in the
case of a Shelf Registration, any Electing Holders aggregating a
majority in aggregate principal amount of the Registrable Securities
at the time outstanding or, (B) in the case of a Market Making Shelf
Registration, Xxxxxxx, Xxxxx & Co., shall request in order to
expedite or facilitate the disposition of such Registrable
Securities, Securities or Exchange Securities, as applicable;
provided, however, that the Company shall not be required to enter
into any such agreement more that once with respect to all of the
Registrable Securities with respect to a Shelf Registration and may
delay entering into such agreement during any applicable Blackout
Period;
15
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Secondary Offer
Registration is an underwritten offering, (A) make such
representations and warranties to the Electing Holders, Xxxxxxx,
Sachs & Co. and the underwriters, if any, thereof in form, substance
and scope as are customarily made in connection with an offering of
debt securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the Secondary
Offer Registration; (B) obtain an opinion of counsel to the Company
in customary form and covering such matters, of the type customarily
covered by such an opinion, as the managing underwriters, if any,
and in the case of a Shelf Registration, as any Electing Holders of
at least the majority in aggregate principal amount of the
Registrable Securities at the time outstanding or, in the case of a
Market Making Shelf Registration, as Xxxxxxx, Xxxxx & Co. or any
Affiliate Investor may reasonably request, addressed to such
Electing Holder or Electing Holders, Xxxxxxx, Sachs & Co., such
Affiliate Investor and the underwriters, if any, thereof and dated
the effective date of such Secondary Offer Registration Statement
(and if such Secondary Offer Registration Statement contemplates an
underwritten offering of a part or all of the Registrable
Securities, Securities or Exchange Securities, as applicable, dated
the date of the closing under the underwriting agreement relating
thereto), (it being understood that the matters to be covered by
such opinion may be subject to customary qualifications and
exceptions and it being understood that opinions that are
substantially the same as those called for by the Purchase Agreement
will be satisfactory for these purposes); (C) obtain a "cold
comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling Electing
Holders, Xxxxxxx, Xxxxx & Co., the Affiliate Investors, if any,
therefor or the underwriters, if any, thereof, dated (i) the
effective date of such Secondary Offer Registration Statement, (ii)
the effective date of any prospectus supplement to the prospectus
included in such Secondary Offer Registration Statement or amendment
or supplement to such Secondary Offer Registration Statement which
includes unaudited or audited financial statements as of a date or
for a period subsequent to that of the latest such statements
included in such prospectus (and, if such Secondary Offer
Registration Statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus included in
such Secondary Offer Registration Statement or post effective
amendment to such Secondary Offer Registration Statement which
includes unaudited or audited financial statements as of a date or
for a period subsequent to that of the latest such statements
included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto) and (iii) the date of
filing of an amendment or supplement to such Secondary Offer
Registration Statement or any other document that is incorporated in
such Secondary Offer Registration Statement by reference and
includes financial data with respect to a fiscal quarter or year, as
the case may be such letter or letters to be in customary form and
covering such matters of the type customarily covered by letters of
such type; (D) deliver such documents and certificates, including
officers' certificates, as may be reasonably requested, in the case
of a Shelf Registration, by any Electing Holders of at least a
majority in aggregate principal amount of the Registrable Securities
at the time outstanding or, in the case of a Market Making Shelf
Registration, by Xxxxxxx, Xxxxx & Co. or any Affiliate Investor and
the managing underwriters, if any, thereof, dated the effective date
of such Secondary Offer Registration Statement (and if such
Secondary Offer Registration Statement contemplates an
16
underwritten offering of a part or all of the Registrable
Securities, Securities or Exchange Securities, as applicable, dated
the date of the closing under the underwriting agreement relating
thereto) and the date of filing of an amendment or supplement to
such Secondary Offer Registration Statement or any other document
that is incorporated in such Secondary Offer Registration Statement
by reference and includes financial data with respect to a fiscal
quarter or year, as the case may be, to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the
Company; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in
Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities affected thereby and Xxxxxxx, Sachs & Co. of any proposal
by the Company to amend or waive any provision of this Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the
text of the amendment or waiver proposed or effected, as the case
may be;
(xix) in the event that any broker dealer registered under the
Exchange Act shall underwrite any Registrable Securities, Securities
or Exchange Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Conduct Rules") of the
National Association of Securities Dealers, Inc. ("NASD") or any
successor thereto, as amended from time to time) thereof, whether as
a holder of such Registrable Securities, Securities or Exchange
Securities or as an underwriter or a broker or dealer in respect
thereof, or otherwise, assist such broker dealer in complying with
the requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging a "qualified independent
underwriter" (as defined in such Conduct Rules) to participate in
the preparation of the Secondary Offer Registration Statement
relating to such Registrable Securities, Securities or Exchange
Securities, as applicable, to exercise all commercially reasonable
standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such Secondary Offer Registration
Statement is an underwritten offering to recommend the yield of such
Registrable Securities, Securities or Exchange Securities, (B)
indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 6
hereof (or to such other customary extent as may be requested by
such underwriter), and (C) providing such information to such broker
dealer as may be required in order for such broker dealer to comply
with the requirements of the Conduct Rules;
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Secondary Offer Registration
Statement, an earnings statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder); and
(xxi) for so long as Xxxxxxx, Xxxxx & Co. may be required to
deliver a prospectus in connection with the offer and sale of
Securities or Exchange
17
Securities in secondary transactions, to furnish to Xxxxxxx, Sachs &
Co. copies of all reports or other communications (financial or
other) furnished to stockholders of Triad Financial, and deliver to
Xxxxxxx, Xxxxx & Co. (i) as soon as they are available, copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange or interdealer
automated quotation system on which the Securities or Exchange
Securities or any other securities of Triad Financial are listed or
quoted and (ii) such additional information concerning the business
and financial condition of the Company and its subsidiaries as
Xxxxxxx, Sachs & Co. may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of Triad Financial are consolidated in reports furnished to
its stockholders generally or to the Commission).
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Electing Holders, Xxxxxxx,
Sachs & Co., Affiliate Investors and the managing underwriters, if any,
thereof, the Company shall without delay prepare and furnish to each of
the Electing Holders, Xxxxxxx, Xxxxx & Co., the Affiliate Investors and to
each such underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, Securities or Exchange Securities,
as applicable, such prospectus shall conform in all material respects to
the applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and shall
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing. Each Electing Holder, Affiliate Investor and Xxxxxxx, Sachs &
Co. agrees that upon receipt of any notice from the Company pursuant to
Section 3(d)(viii)(F) hereof, such Electing Holder, Affiliate Investor and
Xxxxxxx, Xxxxx & Co. shall forthwith discontinue the disposition of
Registrable Securities, Securities or Exchange Securities, as applicable,
pursuant to the Secondary Offer Registration Statement applicable to such
Registrable Securities, Securities or Exchange Securities, as applicable,
until such Electing Holder, Affiliate Investor or Xxxxxxx, Sachs & Co., as
applicable, shall have received copies of such amended or supplemented
prospectus, and if so directed by the Company, such Electing Holder,
Affiliate Investor or Xxxxxxx, Xxxxx & Co. shall deliver to the Company
(at the Company's expense) all copies, other than permanent file copies,
then in such Electing Holder's, Affiliate Investor's or Xxxxxxx, Sachs &
Co.'s possession of the prospectus covering such Registrable Securities,
Securities or Exchange Securities, as applicable, at the time of receipt
of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
and Questionaire as to which any Shelf Registration pursuant to Section
2(b) is being effected or to be provided by Xxxxxxx, Xxxxx & Co. and each
Affiliate Investor in connection with the Market Making Shelf Registration
pursuant to Section 2(c), the Company may require an Electing Holder,
Goldman, Sachs & Co. or an Affiliate Investor, as applicable, to furnish
to the Company such additional information regarding such Electing Holder,
Goldman, Sachs & Co. or Affiliate Investor and such Electing Holder's,
Goldman, Sachs & Co.'s or Affiliate Investor's intended method of
distribution of the applicable Registrable Securities, Securities or
Exchange Securities as the Company may from time to time reasonably
request in writing in order to comply with the Securities Act. Each such
Electing Holder, Affiliate Investor and Xxxxxxx, Xxxxx & Co. agrees to
notify the Company as promptly as practicable of any inaccuracy or change
in information
18
previously furnished by such Electing Holder, Affiliate Investor or
Xxxxxxx, Sachs & Co., as the case may be, to the Company or of the
occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration or Market Making Shelf Registration,
as applicable, contains or would contain an untrue statement of a material
fact regarding such Electing Holder, Affiliate Investor or Xxxxxxx, Xxxxx
& Co. or such Electing Holder's, Affiliate Investor's or Xxxxxxx, Sachs &
Co.'s intended method of disposition of the applicable Registrable
Securities, Securities or Exchange Securities or omits to state any
material fact regarding such Electing Holder, Affiliate Investor or
Xxxxxxx, Xxxxx & Co. or such Electing Holder's, Affiliate Investor's or
Xxxxxxx, Sachs & Co.'s intended method of disposition of the applicable
Registrable Securities, Securities or Exchange Securities required to be
stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to
the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall
not contain, with respect to such Electing Holder, Affiliate Investor or
Xxxxxxx, Xxxxx & Co. or the disposition of the applicable Registrable
Securities, Securities or Exchange Securities, an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
or exempt from the registration requirements the Securities Act.
(h) As a condition to its participation in the Exchange Offer, each
holder of Registrable Securities shall furnish, upon the request of the
Company, a written representation to the Company (which may be contained
in the letter of transmittal contemplated by the Exchange Registration
Statement) to the effect that (A) it is not an affiliate of the Company,
as defined in Rule 405 of the Securities Act, or if it is an affiliate, it
will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable; (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; (D) if it is a
broker-dealer that holds Securities that were acquired for its own account
as a result of market-making activities or other trading activities (other
than Securities acquired directly from the Company or any of its
affiliates), it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities
received by it in the Exchange Offer; (E) if it is a broker-dealer, that
it did not purchase the Securities to be exchanged in the Exchange Offer
from the Company or any of its affiliates; and (F) it is not acting on
behalf of any Person who could not truthfully and completely make the
representations contained in the foregoing clauses (A) through (E).
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Agreement, including (a) all Commission and any NASD registration, filing and
review fees and expenses including fees and disbursements of counsel for
underwriters in connection with such registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Registrable
Securities,
19
Securities or Exchange Securities, as applicable, for offering and
sale under the State securities and blue sky laws referred to in Section
3(d)(vi) and 3(d)(xii) hereof and determination of their eligibility for
investment under the laws of such jurisdictions as any managing underwriters or
the Electing Holders, Xxxxxxx, Sachs & Co. or Affiliate Investors may designate,
including any fees and disbursements of counsel for the Electing Holders,
Xxxxxxx, Xxxxx & Co., Affiliate Investors or underwriters in connection with
such qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities or
Exchange Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities or Exchange Securities to be
disposed of (including certificates representing the Securities or Exchange
Securities), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities or Exchange Securities and the
preparation of documents referred in clause (c) above, (e) reasonable and
documented fees and expenses of the Trustee under the Indenture, any agent of
the Trustee and any reasonable and documented counsel for the Trustee and of any
collateral agent or custodian, (f) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) reasonable and documented fees, disbursements and expenses
of any "qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) reasonable and documented fees, disbursements and expenses of one
counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate principal amount of the Registrable Securities held by such Electing
Holders (which counsel shall be reasonably satisfactory to the Company), one
counsel for Xxxxxxx, Sachs & Co. retained in connection with a Market Making
Shelf Registration, as selected by Xxxxxxx, Xxxxx & Co., and one counsel for the
Affiliate Investors retained in connection with a Shelf Registration, as
selected by the Affiliate Investors of at least a majority in aggregate
principal amount of the Registrable Securities held by such Affiliate Investors
(which counsel shall be reasonably satisfactory to the Company), (j) any fees
charged by securities rating services for rating the Securities or Exchange
Securities and (k) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities, Xxxxxxx, Sachs & Co., Affiliate Investors or underwriter thereof,
the Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a request
therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered, or Xxxxxxx, Xxxxx & Co. or any Affiliate Investor,
as applicable, shall pay all agency fees and commissions, transfer taxes, if
any, and underwriting discounts and commissions attributable to the sale of the
applicable Registrable Securities, Securities or Exchange Securities and the
fees and disbursements of any counsel or other advisors or experts retained by
such holders (severally or jointly), other than the counsel and experts
specifically referred to above.
5. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
20
(a) Each registration statement covering Registrable Securities,
Securities or Exchange Securities and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant
to Section 3(c) or Section 3(d) hereof and any further amendments or
supplements to any such registration statement or prospectus, when it
becomes effective or is filed with the Commission, as the case may be,
and, in the case of an underwritten offering of Registrable Securities,
Securities or Exchange Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and at all times subsequent to the
applicable Effective Time when a prospectus would be required to be
delivered under the Securities Act, other than (A) from (i) such time as a
notice has been given to holders of Registrable Securities or Xxxxxxx,
Sachs & Co. or Affiliate Investors, as applicable, pursuant to Section
3(c)(iii)(F) or Section (d)(viii)(F) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to
Section 3(c)(iv) or Section 3(e) hereof or (B) during any applicable
Blackout Period, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant
to Section 3(c) or Section 3(d) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities, Xxxxxxx,
Sachs & Co. or an Affiliate Investor, as applicable, expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will conform
or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material fact
or will omit or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of
Registrable Securities, Xxxxxxx, Xxxxx & Co. or an Affiliate Investor, as
applicable expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated
will not (i) conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any subsidiary of the Company is a party or by which the
Company or any subsidiary of the Company is bound or to which any of the
property or assets of the Company or any subsidiary of the Company is
subject, (ii) result in any violation of the provisions of the certificate
of incorporation, as amended, or the by-laws of the Company or (iii)
result in any violation of any statute or any order, rule or regulation of
any court or governmental agency or body having
21
jurisdiction over the Company or any subsidiary of the Company or any of
their properties; except in the case of (i) and (iii) above, for such
conflicts, breaches or defaults as would not reasonably be expected to
result in a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect") and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except (1) the registration under the Securities Act of the
Registrable Securities, Securities or Exchange Securities, qualification
of the Indenture under the Trust Indenture Act (2) such consents,
approvals, authorizations, registrations or qualifications as may be
required under State securities or blue sky laws in connection with the
offering and distribution of the Registrable Securities, Securities or
Exchange Securities and (3) such consents, approvals, authorizations,
registrations and qualifications that would not have a Material Adverse
Effect.
(d) This Agreement has been duly authorized, executed and delivered
by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of
Registrable Securities included in a Shelf Registration Statement,
Xxxxxxx, Sachs & Co. as holder of Securities or Exchange Securities
included in a Market Making Shelf Registration Statement, each of the
Affiliate Investors as holder of Securities or Exchange Securities
included in a Market Making Shelf Registration Statement and each person
who participates as an underwriter in any offering or sale of such
Registrable Securities, Securities or Exchange Securities against any
losses, claims, damages or liabilities, joint or several, to which
Xxxxxxx, Xxxxx & Co., or such holder, Electing Holder, Affiliate Investor
or underwriter may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Exchange
Registration Statement or Secondary Offer Registration Statement, as the
case may be, under which such Registrable Securities, Securities or
Exchange Securities, were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by
the Company to Xxxxxxx, Sachs & Co., any such holder, Electing Holder,
Affiliate Investor or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse Xxxxxxx,
Sachs & Co., such holder, such Electing Holder, such Affiliate Investor
and such underwriter for any reasonable and documented legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable to any such person
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use
therein.
22
(b) Indemnification by the Holders and Underwriters in Connection
with any Shelf Registration. Each Electing Holder of Registrable
Securities included in any registration statement filed pursuant to
Section 2(b) hereof and each underwriter who participates in any offering
or sale of such Registrable Securities, severally and not jointly, will
(i) indemnify and hold harmless the Company and all other holders of
Registrable Securities, against any losses, claims, damages or liabilities
to which the Company or such other holders of Registrable Securities may
become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration statement, or
any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder, underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or
underwriter expressly for use therein, and (ii) reimburse the Company for
any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that no such Electing
Holder shall be required to undertake liability to any person under this
Section 6(b) for any amounts in excess of the dollar amount of the
proceeds to be received by such Electing Holder from the sale of such
Electing Holder's Registrable Securities pursuant to such registration.
(c) Indemnification by Xxxxxxx, Xxxxx & Co. and Underwriters in
Connection with the Market Making Shelf Registration. The Company may
require, as a condition to including any Securities or Exchange Securities
in the Market Making Shelf Registration Statement filed pursuant to
Section 2(c) hereof and to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking
reasonably satisfactory to it from each underwriter named in any such
underwriting agreement, severally and not jointly, to, and Xxxxxxx, Sachs
& Co. shall, and hereby agrees to, (i) indemnify and hold harmless the
Company, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Market Making Shelf
Registration Statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to Xxxxxxx, Xxxxx & Co. or
to any such underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by Xxxxxxx, Sachs & Co.
or such underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that, in the case of
Securities held by Xxxxxxx, Xxxxx & Co. at the time of the Exchange Offer,
Xxxxxxx, Sachs & Co. shall not be required to undertake liability to any
person under this Section 6(c) for any amounts in excess of the dollar
amount of the proceeds to be received by
23
Xxxxxxx, Xxxxx & Co. from the sale of such Securities by Xxxxxxx, Sachs &
Co. pursuant to the Market Making Shelf Registration.
(d) Indemnification by Affiliate Investors and Underwriters in
Connection with the Market Making Shelf Registration. The Company may
require, as a condition to including any Securities or Exchange Securities
in the Market Making Shelf Registration Statement filed pursuant to
Section 2(c) hereof and to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking
reasonably satisfactory to it from each underwriter named in any such
underwriting agreement, severally and not jointly, to, and each Affiliate
Investor shall, and hereby agrees to, (i) indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Market Making Shelf
Registration Statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to such Affiliate Investor
or to any such underwriter, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Affiliate Investor or such underwriter expressly for use therein, and (ii)
reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(e) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a), (b) (c) or (d) above of written notice of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such
action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by
Section 6(a), 6(b), 6(c) or 6(d) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying
party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably 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, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the prior written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not
24
include a statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(f) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a), 6(b), 6(c) or 6(d) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(f) were determined by pro rata
allocation (even if the holders or underwriters or all of them 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 this Section 6(f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section
6(f), none of any holder, Affiliate Investor or, in the case of a Market
Making Shelf Registration relating to the sale by Xxxxxxx, Xxxxx & Co. of
Securities held by it a the time of the Exchange Offer, Xxxxxxx, Sachs &
Co. shall be required to contribute any amount in excess of the amount by
which the dollar amount of the proceeds received by such holder from the
sale of any Registrable Securities or Xxxxxxx, Xxxxx & Co. or any
Affiliate Investor from the sale of any such Securities (after deducting
any fees, discounts and commissions applicable thereto) exceeds the amount
of any damages which such holder or Xxxxxxx, Sachs & Co. or such Affiliate
Investor, as applicable, have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission,
and no underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities,
Securities or Exchange Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such underwriter 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', Xxxxxxx, Xxxxx & Co.'s, any Affiliate Investor's and any
underwriters' obligations in this Section 6(f) to contribute shall be
several in proportion to the principal amount of Registrable Securities
registered or underwritten, as the case may be, by them and not joint.
(g) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of Xxxxxxx, Sachs & Co., each holder, Affiliate Investor,
underwriter and each person, if any, who controls
25
Xxxxxxx, Xxxxx & Co. any holder, Affiliate Investor or underwriter within
the meaning of the Securities Act; and the obligations of Xxxxxxx, Sachs &
Co., the holders, the Affiliate Investors and any underwriters
contemplated by this Section 6 shall be in addition to any liability which
Xxxxxxx, Xxxxx & Co., the respective holder, Affiliate Investor or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each employee, officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each
person, if any, who controls the Company within the meaning of the
Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by Electing Holders holding at least a majority in
aggregate principal amount of the Registrable Securities to be included in
such offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis provided
in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities, Xxxxxxx,
Xxxxx & Co. and the Affiliate Investors that to the extent it shall be required
to do so under the Exchange Act, the Company shall timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144, and shall take such further action as any
holder of Registrable Securities, Xxxxxxx, Sachs & Co. or any Affiliate
Investor, may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities or Xxxxxxx, Xxxxx & Co. and
the Affiliate Investors to sell Securities or Exchange Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act. Upon the reasonable request of
any holder of Registrable Securities, Xxxxxxx, Sachs & Co. or any Affiliate
Investor in connection with that holder's, Goldman, Sachs & Co.'s or that
Affiliate Investor's sale pursuant to Rule 144, the Company shall deliver to
such holder, Goldman, Sachs & Co. or Affiliate Investor a written statement as
to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities, Securities or
Exchange Securities or any other securities which would be inconsistent
with the terms contained in this Agreement.
26
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of
its obligations hereunder and that the Purchasers and the holders from
time to time of the Registrable Securities may be irreparably harmed by
any such failure, and accordingly agree that the Purchasers and such
holders, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of the
obligations of the Company under this Agreement in accordance with the
terms and conditions of this Agreement, in any court of the United States
or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 0000 Xxxxxx Xxx., Xxxxx 000, Xxxxxxxxxx Xxxxx, XX
00000, and if to a holder, to the address of such holder set forth in the
security register or other records of the Company, or to such other
address as the Company or any such holder may have furnished to the other
in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the parties hereto and the holders from time to time of
the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of
any holder of Registrable Securities shall acquire Registrable Securities,
in any manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a beneficiary hereof for all purposes and such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable
terms and provisions of this Agreement. If the Company shall so request,
any such successor, assign or transferee shall agree in writing to acquire
and hold the Registrable Securities subject to all of the applicable terms
hereof.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of Xxxxxxx, Xxxxx & Co., any Affiliate Investor or
any holder of Registrable Securities, any director, officer or partner of
Xxxxxxx, Sachs & Co., such Affiliate Investor or such holder, any
underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of
and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities by
such holder or of Securities or Exchange Securities by Xxxxxxx, Xxxxx &
Co. or any Affiliate Investor and the consummation of an Exchange Offer.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part
27
of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture and the form of
Securities) or delivered pursuant hereto which form a part hereof contain
the entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company
and the holders of at least a majority in aggregate principal amount of
the Registrable Securities at the time outstanding and Xxxxxxx, Sachs &
Co.; provided, however, that any such amendment or waiver affecting solely
provisions of this Agreement relating to the Market Making Registration
may be effected by a written instrument duly executed solely by the
Company and Xxxxxxx, Xxxxx & Co. Each holder of any Registrable Securities
at the time or thereafter outstanding shall be bound by any amendment or
waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Agreement shall be in effect,
this Agreement and a complete list of the names and addresses of all the
holders of Registrable Securities and the address of Xxxxxxx, Sachs & Co.
and each Affiliate Investor shall be made available for inspection and
copying on any business day by Xxxxxxx, Xxxxx & Co., any Affiliate
Investor or any holder of Registrable Securities for proper purposes only
(which shall include any purpose related to the rights of the holders of
Registrable Securities under the Securities, the Indenture and this
Agreement) at the offices of the Company at the address thereof set forth
in Section 9(c) above and at the office of the Trustee under the
Indenture.
(j) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
[Signature Page Follows]
28
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
Triad Acquisition Corp.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President &
Secretary
29
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------------
(Xxxxxxx, Sachs & Co.)
30
Accepted as of the date hereof:
Citigroup Global Markets Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Managing Director
31
EXHIBIT A
TRIAD FINANCIAL CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Triad Financial Corp. (the "Company")
11.125% Senior Notes due 2013 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Triad Financial
Corporation at 0000 Xxxxxx Xxx., Xxxxx 000, Xxxxxxxxxx Xxxxx, XX 00000, (714)
373-8300.
------------------
* Not less than 28 calendar days from date of mailing.
A-1
TRIAD ACQUISITION CORP.
TRIAD FINANCIAL CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Triad Acquisition Corp.
(the "Company") and the Purchasers named therein. Pursuant to a stock purchase
agreement dated as of December 23, 2004 (the "Stock Purchase Agreement"), among
Triad Holdings Inc., Ford Motor Credit Corporation, Fairlane Credit LLC and the
Company, the Company will acquire all of the outstanding capital stock of Triad
Financial Corporation, a California corporation ("Triad Financial") on the date
of the Exchange and Registration Rights Agreement the Company merged with and
into Triad Financial, with Triad Financial as the surviving entity. Triad
Financial assumed all of the Company's rights, duties, obligations and
liabilities under the Exchange and Registration Rights Agreement pursuant to a
joinder agreement (the "Joinder Agreement"), dated the date thereof, and all
references to the "Company" herein shall refer to Triad Financial as successor
to Triad Acquisition Corp., as if Triad Financial were the original party to the
Exchange and Registration Rights Agreement. Pursuant to the Exchange and
Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form [__] (the "Shelf Registration Statement") for the registration and
resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities
Act"), of the Company's 11.125% Senior Notes due 2013 (the "Securities"). A copy
of the Exchange and Registration Rights Agreement has been filed as an Exhibit
to the Shelf Registration Statement and is publicly available on the
Commission's XXXXX system. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Exchange and Registration Rights
Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Exchange and Registration
Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
______________________
______________________
______________________
Telephone: ___________________________
Fax: ___________________________
Contact Person: ___________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned: CUSIP
No(s). of such Registrable Securities:
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
____________________________________________________________________
CUSIP No(s). of such other Securities:
______________________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement: _________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
____________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
other securities of the Company, other than the Securities listed
above in Item (3).
State any exceptions here:
A-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor
any of its affiliates, officers, directors or principal equity
holders (5% or more) has held any position or office or has had any
other material relationship with the Company (or its predecessors or
affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in
Item (3) only as follows (if at all): Such Registrable Securities
may be sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters,
broker-dealers or agents. Such Registrable Securities may be sold in
one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time
of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i)
on any national securities exchange or quotation service on which
the Registered Securities may be listed or quoted at the time of
sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for
A-5
inclusion in the Shelf Registration Statement, the Selling Securityholder
agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein which may occur subsequent to the date hereof at any
time while the Shelf Registration Statement remains in effect. All notices
hereunder and pursuant to the Exchange and Registration Rights Agreement shall
be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
_________________________
_________________________
_________________________
_________________________
_________________________
(ii) With a copy to:
_________________________
_________________________
_________________________
_________________________
_________________________
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _________________
____________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: _______________________________________________________________
Name:
Title:
A-6
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
________________________
________________________
________________________
________________________
________________________
A-7
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
JPMorgan Chase Bank, N.A.
Triad Financial Corporation
c/o JPMorgan Chase Bank, N.A.
0 XX Xxxxx- 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Trust Officer
Re: Triad Financial Corporation (the "Company")
11.125% Senior Notes due 2013
Dear Sirs:
Please be advised that _______________ has transferred $________________________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form [______] (File No. 333- _______) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [DATE] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
Very truly yours,
_____________________________
(Name)
By: _____________________________
(Authorized Signature)
B-1
