Exhibit 4.1(C)
Exchange and Registration Rights Agreement dated as of November 19,
2003 (this "AGREEMENT") of TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC, a
Delaware limited liability company (the "COMPANY"), for the benefit of the
holders of the 13% SENIOR SUBORDINATED DISCOUNT NOTES due 2009 (the "SENIOR
SUBORDINATED NOTES") of the Company.
W I T N E S S E T H:
Whereas, the Senior Subordinated Notes have been issued by the Company
pursuant to the "EXCHANGE OFFER" described in the Consent Solicitation and
Exchange Offer Memorandum dated October 22, 2003 (the "SOLICITATION STATEMENT");
and
Whereas, pursuant to the Solicitation Statement, the Company has
committed to take actions with respect to effecting a registered exchange
offering with respect to the Senior Subordinated Notes and, if required as
provided herein, a shelf-registration with respect to the Senior Subordinated
Notes.
Now, therefore, the Company hereby agrees as follows for the benefit of
the holders of the Senior Subordinated Notes:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"ACT": The Securities Act of 1933, as amended.
"BROKER-DEALER": Any broker or dealer registered under the Exchange
Act.
"BROKER-DEALER TRANSFER RESTRICTED SENIOR SUBORDINATED NOTES": Exchange
Senior Subordinated Notes that are acquired by a Broker-Dealer in the Exchange
Offer in exchange for Senior Subordinated Notes that such Broker-Dealer acquired
for its own account as a result of market-making activities or other trading
activities (other than Senior Subordinated Notes acquired directly from the
Company or any of its affiliates).
"BUSINESS DAY": Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
"COMMISSION": The United States Securities and Exchange Commission.
"CONSUMMATE": An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Senior Subordinated Notes to be issued in the Exchange
Offer, (b) the maintenance of such Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the
minimum period required pursuant to Section 3(b) hereof, and (c) the delivery by
the Company to the Registrar under the Indenture of Exchange Senior Subordinated
Notes in the same aggregate
principal amount as the aggregate principal amount of Senior Subordinated Notes
tendered by Holders thereof pursuant to the Exchange Offer.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended.
"EXCHANGE SENIOR SUBORDINATED NOTES": The Company's 13% Senior
Subordinated Discount Notes due 2009 to be issued pursuant to the Indenture (i)
in the Exchange Offer or (ii) upon the request of any Holder of the Senior
Subordinated Notes covered by a Shelf Registration Statement, in exchange for
such Senior Subordinated Notes.
"EXCHANGE OFFER": The registration by the Company under the Act of the
Exchange Senior Subordinated Notes pursuant to the Exchange Offer Registration
Statement pursuant to which the Company shall offer the Holders of all
outstanding Transfer Restricted Senior Subordinated Notes the opportunity to
exchange all such outstanding Transfer Restricted Senior Subordinated Notes for
Exchange Senior Subordinated Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Senior Subordinated Notes
tendered in such exchange offer by such Holders.
"EXCHANGE OFFER REGISTRATION STATEMENT": The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
"HOLDERS": As defined in Section 2 hereof.
"INDEMNIFIED HOLDER": As defined in Section 8(a) hereof.
"INDENTURE": The Indenture dated the date hereof among the Company and
the Trustee pursuant to which the Senior Subordinated Notes are to be issued, as
such Indenture is amended or supplemented from time to time in accordance with
the terms thereof.
"NASD": National Association of Securities Dealers, Inc.
"PERMITTED HOLDERS": Any of the following: (i) Greenwich Street Capital
Partners, Inc., FS Private Investments III LLC (d/b/a Jefferies Capital
Partners), CFSC Wayland Advisers, Inc. or any of their respective affiliates
(including any investment fund or vehicle managed, sponsored or advised by
Greenwich Street Capital Partners, Inc., FS Private Investments III LLC (d/b/a
Jefferies Capital Partners) or any other entity doing business as Jefferies
Capital Partners, CFSC Wayland Advisers, Inc. or any of their respective
affiliates) or (ii) Massachusetts Mutual Life Insurance Company, MassMutual High
Yield Partners II LLC, SAAR Holdings CDO Limited, Xxxxxx CDO Limited, Wilbraham
CBO Limited, Suffield CLO Limited, MassMutual Corporate Investor, MassMutual
Global CBO I Limited and their respective affiliates.
"PERSON": An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
"PROSPECTUS": The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
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"REGISTRATION STATEMENT": Any registration statement of the Company
relating to (a) an offering of Exchange Senior Subordinated Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted Senior
Subordinated Notes pursuant to the Shelf Registration Statement, in each case,
(i) which is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
"RESTRICTED BROKER-DEALER": Any Broker-Dealer, which holds
Broker-Dealer Transfer Restricted Senior Subordinated Notes.
"SENIOR SUBORDINATED NOTES": The Senior Subordinated Notes and the
Exchange Senior Subordinated Notes.
"SHELF REGISTRATION STATEMENT": As defined in Section 4 hereof.
"TIA": The Trust Indenture Act of 1939 as in effect on the date of the
Indenture.
"TRANSFER RESTRICTED SENIOR SUBORDINATED NOTES": Each Senior
Subordinated Note, until the earliest to occur of (a) the date on which such
Senior Subordinated Note is exchanged in the Exchange Offer and entitled to be
resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (b) the date on which such Senior Subordinated
Note has been disposed of in accordance with a Shelf Registration Statement, (c)
the date on which such Senior Subordinated Note is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Senior Subordinated Note is
distributed to the public pursuant to Rule 144 under the Act.
"TRUSTEE": The trustee under the Indenture.
"UNDERWRITTEN REGISTRATION" OR "UNDERWRITTEN OFFERING": A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
2. HOLDERS.
A Person is deemed to be a holder of Transfer Restricted Senior
Subordinated Notes (each, a "Holder") whenever such Person owns Transfer
Restricted Senior Subordinated Notes.
3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall: (i) cause to be filed with the Commission as
soon as practicable after the date hereof, but in no event later than 120 days
after the date hereof, the Exchange Offer Registration Statement; (ii) use its
best efforts to cause such Exchange Offer Registration Statement to become
effective at the earliest possible time, but in no event later than 180 days
after the date hereof; (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause such Exchange Offer Registration
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Statement to become effective, (B) file, if applicable, a post-effective
amendment to such Exchange Offer Registration Statement pursuant to Rule 430A
under the Act, and (C) cause all necessary filings, if any, in connection with
the registration and qualification of the Exchange Senior Subordinated Notes to
be made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer; and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Exchange Senior Subordinated Notes to be offered in exchange
for the Senior Subordinated Notes that are Transfer Restricted Senior
Subordinated Notes and to permit sales of Broker-Dealer Transfer Restricted
Senior Subordinated Notes by Restricted Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Company shall use its best efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open, for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in no event shall such period be less than 20
Business Days. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Senior Subordinated Notes shall be included in the Exchange Offer Registration
Statement; except the Company shall be permitted to combine with the Exchange
Offer Registration Statement any shelf registration effected by the Company with
respect to the Registrable Equity Securities. The Company shall use its best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 25 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Restricted Broker-Dealer who holds Senior Subordinated
Notes that are Transfer Restricted Senior Subordinated Notes, and that were
acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities, may exchange such Senior Subordinated
Notes (other than Transfer Restricted Senior Subordinated Notes acquired
directly from the Company) pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in
connection with its initial sale of each Exchange Senior Subordinated Note
received by such Broker-Dealer in exchange for Senior Subordinated Notes in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such sales of Broker-Dealer Transfer
Restricted Senior Subordinated Notes by Restricted Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Senior Subordinated Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
(d) The Company shall use its best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of
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Section 6(c) below to the extent necessary to ensure that it is available for
sales of Broker-Dealer Transfer Restricted Senior Subordinated Notes by
Restricted Broker-Dealers, and to ensure that such Registration Statement
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 180 days from the date on which the Exchange Offer is Consummated.
(e) The Company shall promptly provide sufficient copies of the
latest version of such Prospectus to such Restricted Broker-Dealers promptly
upon request, and in no event later than two days after such request, at any
time during such one-year period in order to facilitate such sales.
4. SHELF REGISTRATION.
(a) Shelf Registration Generally. If (i) the Company is not
required to file an Exchange Offer Registration Statement with respect to the
Exchange Senior Subordinated Notes because the Exchange Offer is not permitted
by applicable law (after the procedures set forth in Section 6(a)(i) below have
been complied with) or (ii) if any Holder of Transfer Restricted Senior
Subordinated Notes shall notify the Company within 20 Business Days following
the Consummation of the Exchange Offer that (A) such Holder is prohibited by law
or Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Exchange Senior Subordinated Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Senior Subordinated Notes acquired directly from the Company or one of
its affiliates, then the Company shall (x) cause to be filed on or prior to the
earliest of (1) 60 days after the date on which the Company is notified by the
Commission or otherwise determines that it is not permitted or required to file
the Exchange Offer Registration Statement pursuant to clause (i) above and (2)
60 days after the date on which the Company receives the notice specified in
clause (ii) above, a shelf registration statement pursuant to Rule 415 under the
Act, (which may be an amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement")), relating to all Transfer
Restricted Senior Subordinated Notes the Holders of which shall have provided
the information required pursuant to Section 4 hereof, and (y) use its best
efforts to cause such Shelf Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the date
hereof. If, after the Company has filed an Exchange Offer Registration Statement
which satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer shall not be permitted under applicable federal law, then the
filing of the Exchange Offer Registration Statement shall be deemed to satisfy
the requirements of clause (x) above. Such an event shall have no effect on the
requirements of clause (y) above. The Company shall use its best efforts to keep
any Shelf Registration Statement pursuant to this Section 4 continuously
effective, supplemented and amended as required by and subject to the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Transfer Restricted Senior Subordinated Notes by the
Holders thereof entitled to the benefit of this Section 4, and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the date on which such Shelf Registration Statement first becomes effective
under the
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Act (except as otherwise provided in Section 4(b) hereof) or such shorter period
that will terminate when all Transfer Restricted Senior Subordinated Notes
covered by the Shelf Registration Statement have been sold pursuant thereto. The
obligation of the Company to file any post-effective amendment to a previously
filed Shelf Registration Statement or Exchange Offer Registration Statement
shall be suspended if the Company shall have reasonably determined that the
filing thereof would require the disclosure by the Company of a pending
transaction which is material to the Company, but the Company shall file such
post-effective amendment to a previously filed Shelf Registration Statement or
Exchange Offer Registration Statement promptly following either the termination
or abandonment by the Company of the transaction or following the public
announcement of the transaction.
(b) In addition to the provisions of Section 4(a) hereof, and
solely with respect to Permitted Holders, the Company shall make inquiry of
Permitted Holders at least 30 days, but not more than 45 days, prior to each
fiscal quarter commencing after the effectiveness of the Exchange Registration
Statement or any previously filed Shelf Registration Statement as to whether
Permitted Holders intend to effect sales of Senior Subordinated Notes during
such fiscal quarter. If any Permitted Holder advises the Company prior to such
fiscal quarter that the Permitted Holder intends to effect sales of Senior
Subordinated Notes during such fiscal quarter, and if the Company determines
that the Permitted Holder is an "affiliate" (as defined under the rules and
regulations of the Commission) of the Company or if the Permitted Holder
determines, after consultation with counsel and with the Company, that it is an
affiliate of the Company (any such Permitted Holder being herein referred to as
an "Affiliate Holder"), and it is determined also that such Affiliate Holder may
not effect sales of Senior Subordinated Notes except pursuant to an effective
registration statement under the Act, then the Company shall (i) promptly file a
shelf registration statement pursuant to Rule 415 under the Act (which shall be
deemed a "Shelf Registration Statement" for purposes of this Agreement), unless
a previously filed Shelf Registration Statement or Exchange Offer Registration
Statement is effective and available for use by the Affiliate Holder to effect
sales relating to the Senior Subordinated Notes of such Affiliate Holder, and
(ii) use its best efforts to cause such Shelf Registration Statement, or a
post-effective amendment to a previously filed Shelf Registration Statement or
Exchange Offer Registration Statement, to become effective at the earliest
practicable time to permit the Affiliate Holder to effect sales of the Senior
Subordinated Notes. However, the obligation of the Company to file any such
Shelf Registration Statement or post-effective amendment to a previously filed
Shelf Registration Statement or Exchange Offer Registration Statement shall be
suspended if the Company shall have reasonably determined that the filing
thereof would require the disclosure by the Company of a pending transaction
which is material to the Company, but the Company shall file such Shelf
Registration Statement or post-effective amendment to a previously filed Shelf
Registration Statement or Exchange Offer Registration Statement promptly
following either the termination or abandonment by the Company of the
transaction or following the public announcement of the transaction.
(c) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Senior
Subordinated Notes may include any of its Transfer Restricted Senior
Subordinated Notes in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing,
within 20 days after receipt of a request therefor, such information specified
in Item 507 of Regulation S-K under the Act for use in connection with any Shelf
Registration Statement or
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Prospectus or preliminary Prospectus included therein. Each Holder as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
5. [INTENTIONALLY OMITTED]
6. REGISTRATION PROCEDURES.
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all applicable provisions of
Section 6(c) below, shall use its best efforts to effect such exchange and to
permit the sale of Broker-Dealer Transfer Restricted Senior Subordinated Notes
being sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a
change in Commission policy with respect to exchange offers
such as the Exchange Offer, such that in the reasonable
opinion of counsel to the Company there is a substantial
question as to whether the Exchange Offer is permitted by
applicable federal law or Commission policy, the Company
hereby agrees to seek a no-action letter or other favorable
decision from the Commission allowing the Company to
Consummate an Exchange Offer for Senior Subordinated Notes.
The Company hereby agrees to pursue the issuance of such a
decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a
change of Commission policy. In connection with the foregoing,
the Company hereby agrees, however, to take all such other
actions as are requested by the Commission or otherwise
required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic
conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the
Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need
not be favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Senior Subordinated Notes shall furnish,
upon the request of the Company, prior to the Consummation of
the Exchange Offer, a written representation to the Company
(which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an affiliate of the Company, (B)
it is not engaged in, and does not intend to engage in, and
has no arrangement or understanding with any person to
participate in, a distribution of the Exchange Senior
Subordinated Notes to be issued in the Exchange Offer and (C)
it is acquiring the Exchange Senior Subordinated Notes in its
ordinary course of business. Each Holder hereby acknowledges
and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not
under
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Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no- action letters (including,
if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration
and prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or Item 508, as applicable,
of Regulation S-K if the resales are of Exchange Senior
Subordinated Notes obtained by such Holder in exchange for
Senior Subordinated Notes acquired by such Holder directly
from the Company or an affiliate thereof.
(iii) To the extent required by the Commission, prior to
effectiveness of the Exchange Offer Registration Statement,
the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5,
1991) and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation
that the Company has not entered into any arrangement or
understanding with any Person to distribute the Exchange
Senior Subordinated Notes to be received in the Exchange Offer
and that, to the best of the Company's information and belief,
each Holder of Transfer Restricted Senior Subordinated Notes
participating in the Exchange Offer is acquiring the Exchange
Senior Subordinated Notes in its ordinary course of business
and has no arrangement or understanding with any Person to
participate in the distribution of the Exchange Senior
Subordinated Notes received in the Exchange Offer, and (C) any
other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to
clause (i) above.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Senior Subordinated Notes being sold
in accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Company pursuant to Section 4
hereof), and pursuant thereto the Company will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Senior Subordinated Notes in accordance with the
intended method or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Senior Subordinated Notes (including
without limitation any Exchange Offer Registration Statement and the related
Prospectus, to the extent that the same are required to be available to
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permit sales of Broker-Dealer Transfer Restricted Senior Subordinated Notes by
Restricted Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 or Section 4
of this Agreement, as applicable. Upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Senior Subordinated Notes
during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such
Registration Statement, (1) in the case of clause (A),
correcting any such misstatement or omission, and (2) in the
case of either clause (A) or (B), use its best efforts to
cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter. Notwithstanding the foregoing, if (A) the Board of
Directors of the Company determines in good faith that it is
in the best interests of the Company not to disclose the
existence of or facts surrounding any proposed or pending
material corporate transaction involving the Company or its
subsidiaries and (B) the Company notifies the Holders within
two Business Days after the Board of Directors makes such
determination, the Company may allow the Shelf Registration
Statement to fail to be effective and usable as a result of
such nondisclosure for up to 60 days during the two-year
period of effectiveness required by Section 4 hereof, but in
no event for any period in excess of 30 consecutive days;
provided, however, that the two-year period referred to in
Section 4 hereof during which the Shelf Registration Statement
is required to be effective and usable shall be extended by
the number of days during which such registration statement
was not effective or usable pursuant to the foregoing
provisions;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may
be necessary to keep the Registration Statement effective for
the applicable period set forth in Section 3 or Section 4
hereof, or such shorter period as will terminate when all
Transfer Restricted Senior Subordinated Notes or Exchange
Senior Subordinated Notes of any Affiliate Holder covered by
such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424 and
430A, as applicable, under the Act in a timely manner; and
comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such
advice in writing, (A) when the Prospectus or any
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Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted
Senior Subordinated Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the existence of any fact or
the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions
to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Senior Subordinated
Notes under state securities or Blue Sky laws, the Company
shall use its best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
(iv) in the case of a Shelf Registration Statement, use its best
efforts to furnish to the Holder, each selling Holder named in
any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before
filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement),
prior to filing and reasonably respond to comments received
from such persons, and make the Company's representatives
available for discussion of such documents and other customary
due diligence matters;
(v) [Intentionally Omitted]
(vi) in the case of a Shelf Registration Statement, if requested by
any selling Holders or the underwriter(s) in connection with
such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Senior Subordinated
Notes, information with respect to the principal amount of
Transfer Restricted Senior Subordinated Notes being sold to
such underwriter(s), the purchase price being paid therefor
and any other terms of the offering of the Transfer Restricted
Senior Subordinated Notes to be sold in
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such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after he Company is notified of the matters
reasonably requested to be included in such Prospectus
supplement or post-effective amendment;
(vii) in the case of a Shelf Registration Statement, furnish to each
selling Holder and each of the underwriter(s) in connection
with such sale, if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(viii) deliver to each selling Holder of Transfer Restricted Senior
Subordinated Notes and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company
hereby consents to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Senior Subordinated Notes covered by the Prospectus
or any amendment or supplement thereto;
(ix) enter into such customary agreements and make such
representations and warranties and take all such other actions
in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Senior Subordinated
Notes pursuant to any Registration Statement contemplated by
this Agreement as may be reasonably requested by any Holder of
Transfer Restricted Senior Subordinated Notes or underwriter
in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement, and in
such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an
Underwritten Registration, the Company shall:
(A) furnish (or in the case of paragraphs (2) and (3),
use its best efforts to furnish) to each selling
Holder and each underwriter, if any, upon the
effectiveness of the Shelf Registration Statement and
to each Restricted Broker-Dealer upon Consummation of
the Exchange Offer:
(1) [Intentionally Omitted];
(2) an opinion, dated the date of Consummation
of the Exchange Offer or the date of
effectiveness of the Shelf Registration
Statement, as the case may be, of counsel
for the Company, covering matters
customarily covered in opinions requested in
Underwritten Offerings and dated the date of
effectiveness of the Shelf Registration
Statement or the date of Consummation of the
Exchange Offer, as the case may be; and
11
(3) a customary comfort letter, dated as of the
date of effectiveness of the Shelf
Registration Statement or the date of
Consummation of the Exchange Offer, as the
case may be, from the Company's independent
accountants, in the customary form and
covering matters of the type customarily
covered in comfort letters to underwriters
in connection with Underwritten Offerings,
without exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with
any sale or resale pursuant to any Shelf Registration
Statement the indemnification provisions and
procedures of Section 8 hereof with respect to all
parties to be indemnified pursuant to said Section;
and
(C) deliver such other documents and certificates as may
be reasonably requested by the selling Holders or the
underwriter(s), if any, to evidence compliance with
clause (A) above and with any customary conditions
contained in the underwriting agreement or other
agreement entered into by the Company pursuant to
this clause (ix);
the above shall be done at each closing under such
underwriting or similar agreement, as and to the extent
required thereunder;
(x) prior to any public offering of Transfer Restricted Senior
Subordinated Notes, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Senior Subordinated Notes under the
securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriter(s), if any, may request and do
any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer
Restricted Senior Subordinated Note covered by the applicable
Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to the service of process in
suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xi) issue, upon the request of any Holder of Senior Subordinated
Notes covered by any Shelf Registration Statement contemplated
by this Agreement, Exchange Senior Subordinated Notes, having
an aggregate principal amount equal to the aggregate principal
amount of Senior Subordinated Notes surrendered to the Company
by such Holder in exchange therefor or being sold by such
Holder; such Exchange Senior Subordinated Notes to be
registered in the name of such Holder or in the name of the
holder(s) of such Senior Subordinated Notes, as the case may
be; in return, the Senior Subordinated Notes held by such
Holder shall be surrendered to the Company for cancellation;
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(xii) in connection with any sale of Transfer Restricted Senior
Subordinated Notes that will result in such securities no
longer being Transfer Restricted Senior Subordinated Notes,
cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Senior
Subordinated Notes to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Senior
Subordinated Notes in such denominations and such names as the
Holders or the underwriter(s), if any, may request at least
two Business Days prior to such sale of Transfer Restricted
Senior Subordinated Notes;
(xiii) use its best efforts to cause the disposition of the Transfer
Restricted Senior Subordinated Notes covered by the
Registration Statement to be registered with or approved by
such other United States governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of
such Transfer Restricted Senior Subordinated Notes, subject to
the proviso contained in clause (x) above;
(xiv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the holders of
Transfer Restricted Senior Subordinated Notes, the Prospectus
will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(xv) provide a CUSIP number for all Transfer Restricted Senior
Subordinated Notes not later than the effective date of a
Registration Statement covering such Transfer Restricted
Senior Subordinated Notes and provide the Trustee under the
Indenture with printed certificates for Transfer Restricted
Senior Subordinated Notes which are in a form eligible for
deposit with the Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence
investigation by any underwriter that is required to be
retained in accordance with the rules and regulations of the
NASD, and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Senior
Subordinated Note to consummate the disposition of such
Transfer Restricted Senior Subordinated Note;
(xvii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally
available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) covering a twelve-month
period beginning after the effective date of the
13
Registration Statement (as such term is defined in paragraph
(c) of Rule 158 under the Act);
(xviii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith,
cooperate with the Trustee and the Holders of Senior
Subordinated Notes to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its
best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other
forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely
manner; and
(xix) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of
a Transfer Restricted Senior Subordinated Note that, upon receipt of the notice
referred to in Section 6(c)(i) or any notice from the Company of the existence
of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder
will forthwith discontinue disposition of Transfer Restricted Senior
Subordinated Notes pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xiv) hereof, or until it is advised in writing by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus (the "Advice"). If so directed by the Company, each
Holder will deliver to the Company (at the Company's expense) all copies, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Senior Subordinated Notes that was current at
the time of receipt of either such notice. In the event the Company shall give
any such notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or Section 4 hereof, as
applicable, shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 6(c)(i) or
Section 6(c)(iii)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xiv) hereof or
shall have received the Advice.
7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made with the NASD and counsel fees in connection therewith); (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all printing expenses of printing (including printing certificates
for the Exchange Senior Subordinated Notes and printing of Prospectuses); (iv)
all fees and disbursements of counsel for the Company and, in accordance with
Section 7(b) below, the Holders of Transfer Restricted
14
Senior Subordinated Notes; and (v) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company.
(b) In connection with any Shelf Registration Statement required
by this Agreement, the Company will reimburse the Holders of Transfer Restricted
Senior Subordinated Notes the distribution of which is being registered pursuant
to the Shelf Registration Statement for the reasonable fees and disbursements of
not more than one counsel chosen by the Holders of a majority of the principal
amount of such Transfer Restricted Senior Subordinated Notes, which counsel
shall be satisfactory to the Company in its sole discretion.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i) each
Holder and (ii) each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or judgments (i) are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any of the Holders furnished in writing to the Company
by any of the Holders expressly for use therein, (ii) with respect to the
preliminary prospectus, result from the fact that the Holder sold Transfer
Restricted Senior Subordinated Notes to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
prospectus, as amended or supplemented, if the Company shall have previously
furnished copies thereof to the Holder in accordance with this Agreement and the
prospectus, as amended or supplemented, would have corrected such untrue
statement or omission or (iii) are a result of the use by the Indemnified Holder
of any prospectus, when, upon receipt of a notice from the Company of the
existence of any fact of the kind described in Section 6(c)(iii)(D) hereof
contemplated by the last paragraph of Section 6 hereof, the Indemnified Holder
was not permitted to do so.
In case any action or proceeding shall be brought against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company, such Indemnified Holder (or the Indemnified Holder controlled by such
controlling person) shall promptly notify the Company in writing (provided, that
the failure to give such notice shall not relieve the Company of its obligations
pursuant to this Agreement). Such Indemnified Holder shall have the right to
employ its own counsel in any such action but the fees and expenses of such
counsel shall be at
15
the expense of the Indemnified Holder or such controlling person unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the Company, (ii) the Company shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnified Holder or such controlling person and the
Company and the Indemnified Holder or such controlling person shall have been
advised in writing by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
Company (in which case the Company shall not have the right to assume the
defense of such action on behalf of the Indemnified Holder or such controlling
person), it being understood, however, that the Company shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for such Indemnified Holders, which firm shall be
designated by the Holders and be reasonably satisfactory to the Company. The
Company shall not be liable for any settlement of any such action or proceeding
effected without the Company's prior written consent, which consent shall not be
withheld unreasonably, but if settled with the Company's written consent, and
the Company agrees to indemnify and hold harmless any Indemnified Holder from
and against any loss or liability by reason of such settlement. The Company
shall not, without the prior written consent of each Indemnified Holder effect
any settlement of any pending or threatened proceeding in respect of which any
Indemnified Holder is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Holder, unless such settlement includes an
unconditional release of such Indemnified Holder from all liability on claims
that are the subject matter of such proceeding.
(b) Each Holder of Transfer Restricted Senior Subordinated Notes
agrees, severally and not jointly, to indemnify and hold harmless the Company,
and its directors, officers, and any person controlling the Company (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act), to the same
extent as the foregoing indemnity from the Company to each of the Indemnified
Holders, but only with respect to information relating to such Holder furnished
in writing by such Holder expressly for use in any Registration Statement. In
case any action or proceeding shall be brought against the Company or its
directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Senior
Subordinated Notes, such Holder shall have the rights and duties given the
Company and the Company or its directors or officers or such controlling person
shall have the rights and duties given to each Holder by the preceding
paragraph. In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the proceeds received by such Holder
upon the sale of the Transfer Restricted Senior Subordinated Notes giving rise
to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or judgments (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the
16
Holders on the other hand from their sale of Transfer Restricted Senior
Subordinated Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the Indemnified Holder on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of the Indemnified Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Company or by the Indemnified Holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and judgments referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company and each Holder of Transfer Restricted Senior Subordinated
Notes agree that it would not be just and equitable if contribution pursuant to
this Section 8(c) were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The losses, claims, damages,
liabilities or judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the Holders (and its
related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the dollar amount of proceeds
received by such Holder upon the sale of Transfer Restricted Senior Subordinated
Notes exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Senior Subordinated Notes held
by each of the Holders hereunder and not joint.
9. RULE 144.
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Senior Subordinated Notes remain outstanding and during any period in
which the Company is subject to Section 13 or 15(d) of the Exchange Act, to make
all filings required thereby in a timely manner in order to permit resales of
such Transfer Restricted Securities pursuant to Rule 144.
10. UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted Senior
Subordinated Notes on the
17
basis provided in customary underwriting arrangements entered into in connection
therewith and (b) completes and executes all reasonable questionnaires, powers
of attorney, lock-up letters and other documents required under the terms of
such underwriting arrangements. The Company shall have no obligation to effect
any Registration Statement as an Underwritten Registration.
11. SELECTION OF UNDERWRITERS.
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers for any Underwritten Offering that will
administer such offering will be selected by the Company. Such investment
bankers and managers are referred to herein as the "underwriters."
12. MISCELLANEOUS.
(a) Remedies. Each Holder, in addition to being entitled to
exercise all rights provided herein, in the Indenture or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The Company has not
previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Senior Subordinated Notes. The
Company will not take any action, or voluntarily permit any change to occur,
with respect to the Senior Subordinated Notes that would materially and
adversely affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of the Holders of a majority of the outstanding
principal amount of Transfer Restricted Senior Subordinated Notes.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted Senior
Subordinated Notes subject to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
18
If to a Holder:
At the address set forth on the records of the Registrar under
the Indenture, with a copy to the Registrar under the
Indenture.
If to the Company:
Telex Communications, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
Vice President and
Chief Financial Officer
With a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company and the
initial Holders of Transfer Restricted Senior Subordinated Notes; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Senior Subordinated Notes directly from
such Holder at a time when such Holder could not transfer such Transfer
Restricted Senior Subordinated Notes pursuant to a Shelf Registration Statement.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of law rules thereof.
19
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Transfer Restricted Senior Subordinated Notes. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
* * *
In witness whereof, the Company has executed this Agreement as of the
date first written above.
Telex Communications, Inc.
By:_____________________________________
Xxxxxxx Xxxxxxx
Vice President and Chief Financial Officer
20
